In a recent lecture Judicial Power: Past, Present and Future, leading legal philosopher Professor John Finnis launched a strong critique of the Supreme Court of the United Kingdom, especially the famous decision of its predecessor, the House of Lords, in the Belmarsh case, that a provision permitting the detention of suspected terrorists was incompatible with Europe’s human rights convention. By contrast he was strongly supportive of the High Court, writing:
Australia, which has as a federal nation done entirely without constitutionally stated rights for 115 years, made the choice not to entrust this inappropriate kind of power to judges, but to trust themselves and the legislatures they elect. (Victoria and one small federal territory are the only exceptions and very novel ones.) Australia I would say has done easily as well as countries under judicially enforceable or even judicially declarable human rights, and has kept its legislative and judicial discourse authentic, largely uncluttered with this sort of make-believe and confusion of roles, responsibilities and competences.
Professor Finnis relied upon the High Court’s decision in Al-Kateb v Godwin  HCA 37 (where Court upheld indefinite immigration detention in some circumstances) and reserved particular praise for Justice Heydon’s judgment in Momcilovic v The Queen  HCA 34 (where he would have declared Victoria’s human rights law constitutionally invalid.)
Policy Exchange, which has published the lecture as part of its judicial power project, invited three leading constitutional scholars to comment. Adrienne Stone’s commentary — questioning his reliance on Al-Kateb and Momcilovic — is here: Continue reading
By Professor Adrienne Stone
Unions NSW v New South Wales Case Page
In 1992, in Australian Capital Television v Commonwealth  HCA 1, the very first case on the constitutional freedom of political communication, the High Court struck down a Commonwealth law prohibiting electronic advertising during election periods. That law had been enacted as a campaign finance reform measure aimed at reducing the reliance of political parties on their donors and thus the High Court’s first application of the freedom of political communication struck a blow to the cause of campaign finance reform in Australia.
In more than twenty years since, however, freedom of political communication cases have focused on other questions such as the protection of political process, the application of defamation law in political debate and the permissibility of insult laws. It was not until late last year, however, that the Court returned to consider the operation of the freedom of political communication to the regulation of electoral finance. In Unions NSW v New South Wales  HCA 58, the Court heard a challenge brought by unions to two sections of the Election Funding, Expenditure and Disclosures Act 1981 (NSW).
What were the challenged laws?
The general scheme of this Act requires disclosure of political donations by political parties, members of parliament, candidates and ‘third party campaigners’ (other persons who incur more than $2000 in electoral expenditure annually). It also caps the amount that can be donated to these persons and the total amount of electoral communication expenditure for State election campaigns. Continue reading
By Professor Adrienne Stone
Attorney-General (SA) v Corporation of the City of Adelaide Case Page
Two weeks ago, the Federal Court dismissed a challenge by members of Occupy Melbourne against the enforcement of bans on camping and advertising in inner Melbourne’s squares and gardens. Justice North relied in large part on a High Court ruling from March, concerning Samuel Corneloup and his brother Caleb, members of a street church that regularly engaged in preaching on the Rundle Mall in Adelaide. Their noisy preaching gave rise to one of two important freedom of political communication cases in the High Court this year: Attorney-General (SA) v Corporation of the City of Adelaide  HCA 3 (‘Corneloup’s Case’). (The other, Monis v The Queen  HCA 4, is discussed here.)
Adelaide’s preaching ban
Preaching on the Adelaide mall (like other ‘roads’) is subject to Council By-Law No 4 which (subject to exceptions for election campaigning) provides that ‘[n]o person shall without permission on any road
2.3 preach, canvass, harangue, tout for business or conduct any survey or opinion poll …
2.8 give out or distribute to any bystander or passer-by any handbill, book, notice, or other printed matter.
Disputes arose between the Corneloup brothers and the Adelaide City Council over the Corneloups’ preaching that resulted, first, in the conviction of Samuel Corneloup in the Magistrates Court of South Australia in 2010 and, second, in separate proceedings brought by the Council to restrain the Corneloups and others from preaching on the Rundle Mall. Continue reading
By Professor Adrienne Stone
Monis v The Queen Case Page
In Monis v The Queen  HCA 4, it was alleged that Monis (aided and abetted by Droudis) wrote letters to relatives of Australian soldiers killed in active service in Afghanistan and to the relative of an AusAid official killed by a bomb in Indonesia. The letters expressed opposition to the war in Afghanistan in ‘intemperate and extravagant terms’ and directly insulted those who had died, including describing them as murderers and comparing them to Hitler. These allegations bear an uncanny resemblance to those of Snyder v Phelps, a controversial recent decision of the United States Supreme Court. The Supreme Court found that the Westboro Baptist Church had a right under the First Amendment to the Constitution of the United States to picket the funerals of American soldiers in order to communicate its belief that God hates the United States for its tolerance of homosexuality, particularly in the American military. Continue reading