The Constitution and Protecting Rights

Justice and the Rule of Law:
The Constitution and Protecting Rights

	5.1The Rule of Law and Source of Laws
	5.2 What is a Constitution?
	5.3 The Separation and Division of Powers
	5.4 Legalism or Constitutionalism in Australia?
	5.5 The High Court of Australia and Rights
	5.6 An Australian Bill of Rights?

This aim of this week is to introduce you to the concepts of the rule of law and civil and political rights in the context of the operations of Australian legal and judicial institutions. In this week's study you will examine (a) the Commonwealth Constitution, (b) how it determines the structure of governance, and (c) how it influences the exercise of civil and political rights by Australians. Of particular interest will be an analysis of the power and influence of the High Court of Australia. Here, we consider issues concerning the separation of powers between the executive, the parliament and the judiciary. We shall examine the notion and significance of the rule of law, constitutionalism and discuss the debate over whether Australia needs a Bill of Rights. This week's study takes up in an Australian context some of the issues first raised in Week 3.

1.The Rule of Law and Source of Laws

The principle called 'rule of law' lies at the heart of individual freedom and liberal democracy. David Beetham and Kevin Boyle (1995: 71) describe this principle in the following way: The rule of law embodies the simple principle that all state officials, whether elected or non-elected, should act within the law and the constitution, on the basis of powers that are legally circumscribed ... . The principle can be traced back to the Aristotelian idea that the best government involves the 'rule of laws, not of me'. In its modern form the principle evolved from the struggle to limit the arbitrary discretion of the monarch and his or her officials, by requiring legal authorisation for all executive action. The rule of law comprises both an informal culture of values and formal procedures. Wherever the early colonists of New South Wales, whether convicts, emancipists, or free settlers, saw the imposition of arbitrary authority of the Governor they called for the establishment of the rule of law (see Neal 1991: 85—113). Some of their concerns are evident in the following document which criticises the existing legal system and requests the introduction of trial by jury.

Read:Petition to the Prince Regent. [1819] 1980. In F. Crowley ed. Colonial Australia 1788—1840. A Documentary History of Australia. Melbourne: Thomas Nelson, pp. 247—9.

The independence of the judiciary is central to the rule of law, only through the existence of an independent judiciary can there be confidence that the law is administered without 'fear or favour'. As Justice Michael Kirby (1997: 2) of the High Court has noted, 'when you take the independence of the judges away, all that is left is the power of guns or of money or of populist leaders or other self-interested groups.' The rule of law itself presupposes equality of treatment before the law. This means that no-one is to be above the law, that justice is available for all, that the law protects all citizens. For some, the reality of the rule of law must include the right to legal representation for all accused as a necessary part of ensuring equal treatment before the law. Hence the issue of the availability of legal aid becomes firmly embedded in debates about the rule of law. One of the main assumptions underlying the provision of legal aid is that justice ought not depend on the accident of poverty.

The rule of law is the governing principle that requires governments and individuals to abide by particular laws and not arbitrary decisions. In Australia, there are different levels of courts (state and federal) which, depending upon their function, are concerned with adjudicating four main sources of law (see Hughes and Leane 1996: 44-7):

the common law or law made by the previous decisions of courts in England and Australia;
legislation or statutory law made by parliament and their official orders, regulations and rules or 'subordinate legislation' which may be made by the public service and statutory authorities;
constitutional law based upon the Commonwealth Constitution and adjudicated by the High Court of Australia;
international law concerns the relations between sovereign states and may be influential where a country signs an international treaty;
customary law is that which is based upon the authority of conventions, traditions and common practices maintained by a people. It may not be codified in writing but known through and the oral culture of a society.

The constitution of a polity is often regarded as the most important source of law. This leads us to examine in more detail the nature of a constitution.

2.What is a Constitution?

A constitution is, at its most basic level, a means of arranging a political system. It provides:

a fundamental legal framework and organisational structure for government; and
for the various functions and powers given to the different political institutions within the polity;

Because a constitution is regarded as a higher or more fundamental source of law, it is usually more difficult to change than ordinary laws based on acts of parliament.

A constitution will also tell us something about the values on which a political system is based. In other words, a constitution is concerned with legal and political institutions, with their functions and procedures and also with broader civic values. Sometimes these values are indicated in the preamble to the constitution. Although most preambles are largely symbolic, constitutional courts may use them to clarify the meaning of other parts of the constitution.

United States of America

'... to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty ...'

Republic of Ireland

'... to provide the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.'

Republic of South Africa

'... to lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law.'

Constitutional Centenary Foundation. 1998. Quest for a preamble.
Round Table No. 2: 1, 3.

A constitution establishes formal relationships between the government and the governed. In this sense, a constitution achieves a basic requirement in a democracy, which is to protect its citizens from arbitrary decisions of government. In the Australian case, the constitution does this by placing limits on the powers of government and by allowing for the establishment of a final arbiter of governmental power, the High Court of Australia.

It is important to recall that whilst the Australian Constitution is a written document, a constitution can also be unwritten. The British Constitution for instance does not exist as one single document, it has evolved over hundreds of years of legal and political practice but it is nowhere systematically codified into a single document. The British Constitution, again unlike the Australian, can be changed or amended by normal parliamentary processes. Its structures, procedures and values are located not only in various laws but especially in established political practices or conventions. The British Constitution provided the fundamental political values or conventions which inhere in the Australian Constitution which are that government should be representative, responsible and accountable to the people.

This mix of the British and American styles of government, has brought with it some distinctive Australian difficulties. The Constitution for instance, whilst establishing the respective powers of the federal compact, does not specify nor even refer to, the unwritten conventions upon which the Westminster system of government operates. Responsible government, the primacy of the House of Representatives and even the office of the Prime Minister, are nowhere mentioned in the Australian Constitution, yet these constitutional conventions play a very important role in the successful functioning or process of the Australian Constitution.

Read:R.A. Hughes and G.W. Leane, 1996. The Australian federal constitution, pp. 117—37.

Nonetheless, the Australian constitution does set out clearly the separation and division of powers between different levels of Australian government and different institutions of governance. One of the major point of contention over the last decade is the role of the High Court judgements in altering the balance of power between Commonwealth and State governments.

3.The Separation and Division of Powers

As we have discussed in earlier weeks, the Australian system of government is a unique. It combines an American-style federal system and its attendant written Constitution, with the Westminster system of parliamentary government. In Australia, as in America, the Constitution is the backbone of this system. Unlike their American counterparts, few Australians would know its key features, let alone be able to recite its opening lines or 'preamble'. Of particular interest here, is that our Constitution nowhere mentions 'citizens' or 'citizenship'.

Yet, the Commonwealth Constitution does set out the relative powers between three different arms of federal government. It assigns distinct powers to three areas:

legislative power or the power to make new laws resides with the Parliament which comprises members elected by the people
executive power which is the power to implement and administer law is exercised by the government but formally resides with the Governor-General who acts on advice from the ministers
judicial power which is the power to interpret and enforce law resides with the judiciary and courts.

In the Australian system of government, legislative and executive power come together in the Parliament to conform to the Westminster system of ministerial responsibility to Parliament which also lies at the heart of our system. In short, the Parliament makes the laws, the Executive carries them out, and the High Court determines their constitutionality or legality. In Australia political power is maintained separately from judicial power, guaranteeing the independence of the judiciary. This is what is meant by the separation of powers.

As we saw in an earlier week, the Australian Constitution also establishes the formal structure of federalism, setting out the respective powers of the federal and state jurisdictions. This is known as a division of powers. Established at the turn of the century and often requiring interpretation, this division of Commonwealth and State power is in turn arbitrated by the High Court of Australia, the only court in Australia the existence of which is guaranteed under the Constitution. The High Court therefore, plays a crucial role in the functioning of Australia as a federation. Insofar as the Court reflects the separation of powers between parliament, the executive and the judiciary, its independent operation is equally crucial to the functioning of Australia as a democracy. Justice Mary Gaudron takes an even stronger view (The Highest Court ABC-TV 26 May, 1998) when she says: 'It is the glue that binds society together.'

Justice John Toohey of the High Court of Australia has written an article which upholds the role of the courts and judicial independence in a liberal democracy. Central to his argument is the claim that judicial review of parliamentary legislation is not opposed to democracy but crucial to its defence. In Toohey's (1993: 160) view, the rule of law enables courts to fulfil their responsibilities to protect citizens against the abuse of legislative and executive power.

Read:J. Toohey, 1993. A government of laws, and not of men? Public Law Review 4(3): 158—74.

One of the points to be drawn from Toohey's article is that there are a number of sources of substantive law: customary law, common law, natural law. Implicit in his analysis, however, are also two other sources of law, namely constitutional law based upon national constitutions, whether written or unwritten and parliamentary legislation or statute law. The next section takes up a number of the issues concerning the methods by the High Court of Australia has come to its decisions in constitutional and other cases.

4.Legalism or Constitutionalism in Australia?

As a written document with the High Court as its arbiter, judicial interpretations of the Australian Constitution has been influenced more by legal considerations than political ones. As Hocking (1997: 243) points out:

The dominant legal discourse in Australia which developed during the interwar period was a strict legalism which rested on a literal reading of judgments and legislative texts in order to arrive at their meaning and thence their application.

A constitution that is treated solely as a legal document will tend to be resistant to change, and stamped with the prejudices of the 19th century. Because of this tendency towards legalism many critics have argued that it has become increasingly irrelevant to problems confronting the Australian polity today.

Advocates of legalism, however, claim that High Court justices can and ought to interpret the Constitution according to a strict, or literal, meaning of its written provisions. The legalists contend that such judicial decision-making ought not take into account contextual factors of a political, economic or social nature. It is argued that, in this way, legalism prevents judges from engaging in politics and that politics is thereby kept out of the Court's deliberations. This legalist approach aims to concentrates on the written text of the Constitution and pays little or no attention to either the intention of a particular legislation or contemporary political expectations.

Critics of legalism argue that such an approach necessarily minimises, or even ignores, the attendant unwritten conventions which are an important feature of our Constitution and which ought to be considered in its interpretation. Opponents of legalism also argue that it presupposes an artificial distinction between political and legal decision-making. This has the consequence that in so doing legalism keeps the law out of step with changing interests and values and treats today's society as irrelevant. On this view, the essential adaptability of the Constitution is lost. The late High Court Justice Lionel Murphy clearly enunciated his opposition to the then predominant legalism throughout his decade on the High Court. In 1982 Murphy (cited in Hocking 1997: 243 fn 1) argued:

the widely held view that judges should not consider economic, social or political factors in reaching their decisions is a political approach to law-making, calculated to preserve the existing order. ... It is impossible, for example, to understand the recent judicial differences in Australia over statutory interpretation in income tax and other areas without looking at the social and economic setting. Most judges understand this, and occasionally a few of them say it.

Critics of legalism would favour instead a notion of constitutionalism which sees the constitution not simply as a legal document but as a blueprint for governance built around a set of values shared by the community. A liberal constitution which is understood in this way, as a legal and political framework for governing a liberal democratic society, will need a degree of flexibility. This flexibility is essential if the basic constitutional principles are to continue to operate throughout changing historical circumstances.

All this suggests that for constitutionalists, the constitution will take its meaning from the values of the society within which it operates, and not the other way around. Societies do not remain the same over time, and even in the hundred years since the Australian constitution was first planned, debated and established, progress in technology, for example, has raised issues which could not have been foreseen. The Australian Constitution was drafted before the coming of radio, before television, before the introduction of a national social security system, and even before the development of a national economy. It is hardly surprising that in some areas, the Constitution quickly became anachronistic, and for some, a deliberate barrier to radical or progressive governmental change.

For the Australian Labor Party in particular, the narrow legalistic focus of the early High Courts' interpretations of the constitution gave rise in the immediate years after federation to a very limited view of its possibilities. The constitution quickly came to be considered as a restrictive and inflexible document, which circumscribed many of the core economic platforms of the Australian Labor Party, in particular its contentious socialisation objective. It was a view best articulated in Gough Whitlam's seminal essay of 1957, 'The Constitution versus Labor'. In this essay Whitlam drew attention to the deep conflict between the constitutional foundations of the Australian politico-legal institutions and the Labor party. The Labor party, Whitlam (1957: 16) argued, 'has been handicapped, ... by a Constitution framed in such a way as to make it difficult to carry out Labor objectives and interpreted in such a way as to make it impossible to carry them out.' Indeed, generations of High Court Justices had ruled in concert with Whitlam's pessimism. As a result both of its legal structure and its judicial interpretation, Whitlam (1957: 44) saw the Constitutional framework as one 'which enshrines Liberal policy and bans Labor policy'.

5.The High Court of Australia and Rights

A right is a claim made by individuals or groups that entitles them to be treated in a particular way by other people or institutions. Although the Constitution sets the formal guidelines for Australian government and law, it has been a long-standing point of contention that the Constitution does not specifically protect most of the political and civil rights that we would see as fundamental to a liberal democratic society. The framers of our Constitution believed that rights would be better protected by laws passed by the Parliament rather than by specifying rights in the Constitution. There were, however, vigorous arguments over the matter during the Constitutional Conventions (see Williams 1996). Australia remains one of the few countries in the world without a constitutional charter of rights. This means that rights in Australia are neither inalienable nor inviolable. Rights are granted, protected, limited and potentially removed by acts of government. For Hugh Emy this is one of the weaknesses of the Australian Constitution.

Read:H. Emy, 1996: Citizenship, democracy and the constitution. In S.R. Davis ed. Citizenship in Australia: Democracy, Law and Society. Melbourne: Constitutional Centenary Foundation, pp. 22—33.

As Hugh Emy (Emy 1996: 25) discusses, despite the existence of section 41 which appears to guarantee the right to vote, the High Court has not ruled to this effect.

The Constitution does not affirm the right to vote for all those over eighteen years of age. Instead, sections 8 and 30 leave it to the Federal Parliament to decide who shall vote in Federal elections.

Although the right to 'one vote, one value'–that each vote shall have an equal weight may appear to be protected by section 24 of the Constitution which states that the House of Representatives 'shall be composed of members directly chosen by the people of the Commonwealth' (see McKinlay 1975/6), the High Court has not affirmed this right. That is, there is no absolute constitutional guarantee of political rights such as the right to vote, and the notion of 'one vote, one value'. Furthermore, the constitution makes only scattered reference to civil rights. For example, freedom of religion is guaranteed under section 116; the right to a trial 'on indictment' to be by jury protected under section 80; and section 52(xxxi) provides that property acquisition by the Commonwealth should be on fair terms.

Yet even these apparently clear statements of civil rights have been subject to unexpected legal outcomes. Trial by jury, which might appear to be enshrined under section 80 has been read by several High Court decisions not to apply to trials for charges not heard 'on indictment'. As interpreted by the High Court, section 80 contains no effective guarantee of trial by jury, even in serious cases, if that case is not heard on indictment. As Justice Murphy pointed out in his dissecting judgment in this case, 'Parliament could provide the death penalty for any offence' yet by making it an offence to be heard only before a magistrate and not on indictment, there would be no jury trial, making a mockery of the constitution. In Murphy's view (in Li Chia Hsing case 1982): 'The jury system is the main social defence against governmental and other oppression, the main instrument for preserving the liberties of the people.'

Nevertheless, Emy points out that the High Court, particularly under the Chief Justice Sir Anthony Mason, has found that there exists in the Constitution an implied right to freedom of political communication and debate. Emy (1996: 31) summarises the argument:

The Court reasoned that since the Constitution could be presumed to authorise a system of representative democracy, this in turn entailed freedom of debate. This line of reasoning pointed the way towards the discovery of other implied rights.

An important right more recently acknowledged by the court is the right to legal representation. Although this had been taken unsuccessfully to the bench in a well-known case in 1977 (McInnis), more recently the Court found that such a right did exist (Dietrich). All cases must therefore ensure that legal representation has been provided to an accused.

In many respects, the Mason High Court developed a jurisprudence, or theory of law, that had been clearly enunciated earlier by the late High Court Justice Lionel Murphy. Murphy was appointed to the High Court by the Whitlam Labor government in 1975 and remained a justice until his death in 1986. Murphy was a prominent proponent of the constitutionalism discussed above, which led him to consider that,

the Constitution establishes both a legal and a political framework, not in abstraction but for a democratic Australian society. It is through this prism that we make sense of the written Constitution, transforming it from a literal text into a living Constitution ... in which can be read implications of democratic rights, human rights and the rule of law, what Murphy called the 'great principles of justice' (Hocking 1997: 250).

In a speech to the National Press Club in 1980, however, Murphy (cited in Hocking 1997: 250) made clear his view that rights were not being adequately protected in Australia:

the leaders of our society proclaim to the nation and other nations that our society, our laws, are conducted according to certain fundamental principles, for example the rule of law–equal justice and opportunity for all, equal protection of laws–and they state that everyone is entitled to live in freedom and dignity. These are fine principles, regrettably they are not strictly observed.
The ideals of law are most admirable. The problem is to get the courts to implement in practice what the law proclaims to be in theory. The High Court's success will be judged by the extent to which it does implement the great ideals of justice and human rights.

This view has not received universal assent. Jeffrey Goldsworthy, for example, has argued that judicial enforcement of rights has the potential to harm democracy.

Read:Goldsworthy, J. 1995. Judicial enforcement of rights can damage democracy. Australian 9 March: 9.

Chief Justice Gerard Brennan, who succeeded Sir Anthony Mason, takes up the issue of judicial indepedence and outlines several of its foundations or guarantees. His paper is the subject of criticism by John Hyde.

Read:Brennan, G. 1995. Towards a true people's court. Australian 27 July: 12 and
Hyde, J. 1995. Brennan's vision is flawed. Australian 4 August: 13.

Hugh Emy takes up a number of these issues to argue that the constitution ought to be 'democratised'. Among the reforms he suggests is to devise and insert a new preamble and incorporate a Bill of Rights into the constitution.

In considering the place of human rights in Australia we need to ask which rights are essential to our democratic polity. Hugh Emy and Owen Hughes (1991: 296) identify six types of rights in this context: political, civil, legal process, economic, rights of equality and social rights. Each of these can be detailed further as follows:

Political Rights

free and fair elections
one vote one value

Civil

freedom of speech
freedom of association
freedom of the press
freedom of religion

Legal Process Rights

freedom from arbitrary arrest
fair and speedy trial
legal counsel
presumption of innocence
protection against cruel and unusual punishment
protection against self-incrimination

Economic Rights

to own property
compensation on just terms if property is compulsorily acquired
right to work
right to with-hold labour
freedom of contract
to an adequate standard of living

Rights of Equality

equal protection under the law
against discrimination

Social Rights

education
privacy
protection of cultural, linguistic and environmental heritages

As Emy asks, which of these rights do we consider fundamental to our system of government, and therefore as requiring protection? Does this mean that we need a Bill of Rights in Australia in order to protect these rights?

6.An Australian Bill of Rights?

The question of whether Australia should have a Bill of Rights has been a point of political debate since before Federation. The framers of our Constitution rejected the notion of a Bill of Rights incorporated within the Constitution, preferring to leave such protections for the Parliament to determine. This debate was given renewed impetus in the 1970s during the stormy period in office of the Labor government under Gough Whitlam (elected 1972 and again in 1974) which introduced a Human Rights Bill in 1974 under the then Attorney-General Lionel Murphy. This Bill was strongly opposed by the Liberal and Country Party Opposition and did not pass through the Opposition dominated Senate. Murphy's 'Why Australia Needs a Bill of Rights', published in 1974 by the Attorney-General's Department, has become one of the best known and most popular documents in this debate. It provides an eloquent denunciation of the failure of the courts and parliament to maintain basic democratic protections and the absence of many of these rights at common law.

The former Liberal Prime Minister Sir Robert Menzies (Menzies 1973/4) contributed a widely disseminated series of articles in which it was claimed that the Human Rights Bill 1974 was unconstitutional, that it would involve the High Court in political determinations and that, regardless of all these points, democratic rights and freedoms were already adequately protected by common law and responsible government. These arguments have been revisited many times over the last three decades. Ronald Sackville and Harry Gibbs canvass a number of the key issues.

Read:R. Sackville, 1995. Towards an Australian charter of rights. Constitutional Centenary 4(4): 23—5, and
H. Gibbs, 1995. The legislative or constitutional protection of human rights. Constitutional Centenary 4(4): 25—8.

In support of a Bill of Rights it is claimed that:

there would be clear limits placed on actions of government in terms of any potential interference in the exercise by citizens of their democratic rights;
a Bill of Rights would operate as a constraint on the passage of discriminatory legislation by either the Australian parliament or the states;
a Bill of Rights would free citizens from their unprotected reliance on judicial and legislative restraint;
a Bill of Rights provides an educative function, alerting citizens to their rights and to the means of protecting them;
a Bill of Rights gives citizens a firm legal basis for the protection of rights;
a Bill of Rights would place Australia on a firmer footing from which to meet its obligations as a signatory to the International Convention on the Protection of Civil and Political Rights.

Those against a Bill of Rights argue that a Bill of Rights:

could be seized upon by a radical High Court bench to accomplish radical change;
would in some way permanently restrain the power of the Parliament in a way that is incompatible with the principles of democratic government;
would enable the judiciary to establish its own political agenda against the wishes of the legislature;
is a creature of its time and will inevitably become another rigid document that does not allow for changing social values and political developments in its interpretation;
could be taken by governments and courts as establishing maximum levels of rights to be upheld rather than setting a minimum standard. Such a view would prevent the extension of further rights other than those clearly specified in the Bill of Rights;
is ultimately unpredictable. Our own history of constitutional interpretation should alert us to just how unpredictable the impact of apparently unambiguous statements may be in skilled legal hands.

In 1994 the Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade presented a report which again recommended the adoption of an Australian Bill of Rights. The topic continues to be a source of political controversy.

Conclusion

This Study Week has drawn attention to a number of principles and legal institutions that are critical for the effective operation of a liberal democracy. Central concepts are the rule of law and the separation of powers. You have also been introduced to a number of the Australian debates on these topics. Of major importance is the Commonwealth Constitution and the role of the High Court in Australian democracy. One of the key issues is whether the High Court has, at times, usurped the powers of parliament or whether it is simply performing its traditional role in a system of checks and balances. These issues have often prompted debates about whether Australia ought to have a bill of rights. In the next Study Week we shall examine in more detail the nature of the political institutions of liberal democracy in Australia and assess further whether they are fulfilling their various objectives.

Review for Week 5

Before proceeding, you ought to review your understanding of this week's topic by:

(a) reading again the documents for this week and completing the related Study Questions in the Workbook, for which there are no answers provided.

References

Beetham, D. and Boyle, K. 1995. Introducing Democracy: 80 Questions and Answers. Cambridge: Polity Press and UNESCO.

Brennan, G. 1995. Towards a true people's court. Australian 27 July: 12.

Constitutional Centenary Foundation. 1998. Quest for a preamble. Round Table No. 2: 1, 3.

Crawford, J. 1993. Australian Courts of Law. Melbourne: Oxford University Press, ch. 2 'The Common Law Background'.

Emy, H. 1996. Citizenship, democracy and the constitution. In S.R. Davis ed. Citizenship in Australia: Democracy, Law and Society. Melbourne: Constitutional Centenary Foundation, pp. 22—35.

Emy, H. and Hughes, O. 1991. Australian Politics: Realities in Conflict. 2nd edn Melbourne: Macmillan.

Gibbs, H. 1995. The legislative or constitutional protection of human rights. Constitutional Centenary 4(4): 25—8.

Goldsworthy, J. 1995. Judicial enforcement of rights can damage democracy. Australian 9 March: 9.

Hocking, J. 1997. Lionel Murphy: A Political Biography. Melbourne: Cambridge University Press.

Hughes, R.A. and Leane, G.W. 1996. Australian Legal Institutions. Sydney: J.L. Law & Tax. The Australian federal constitution..

Hyde, J. 1995. Brennan's vision is flawed. Australian 4 August: 13.

Kirby, Justice M. Teaching Australian civics. Faculty of Law Queensland University of Technology. 15 August 1997. http://www.hcourt.gov.au/qut.htm

Menzies, R. 1974. Do we need a bill of rights? Common law is the best guarantee. Courier Mail 14 March.

Menzies, R. 1974. Do we need a bill of rights? Threat to the Constitution and to the States. Courier Mail 15 March.

Menzies, R. 1974. Do we need a bill of rights? Dangers in mixing politics and the role of the courts. Courier Mail 16 March.

Murphy, L.K. 1974. Why Australia Needs a Bill of Right. Canberra: AGPS.

Neal, D. 1991. The Rule of Law in a Penal Colony. Melbourne: Cambridge University Press.

Petition to the Prince Regent. [1819] 1980. In F. Crowley ed. Colonial Australia 1788—1840. A Documentary History of Australia. Melbourne: Thomas Nelson, pp. 247—9.

Sackville, R. 1995. Towards an Australian charter of rights. Constitutional Centenary 4(4): 23—5.

Toohey, J. 1993. A government of laws, and not of men? Public Law Review 4(3): 158—74.

Whitlam, E.G. [1957] 1977. The constitution versus labor. In On Australia's Constitution. Camberwell: Widescope, pp. 15-45.

Williams, J. 1996. Race, citizenship and the formation of the Australian constitution: Andrew Inglis Clark and the '14th amendment'. Australian Journal of Politics and History 42(1): 10—23.

Internet and On-Line Resources

Below is a list of web-sites relevant to this week's course material. These sites should be of use in completing the study and research exercises for this week.

Australasian Legal Information Institute

Constitutional Centenary Foundation

The Good Citizen: Australian Democracy and Citizenship

The High Court of Australia