Murray Wesson

Disagreement and the Constitutionalisation of Social Rights

Publisher: Oxford University Press (OUP)

Date: 24-05-2012

DOI: 10.1093/HRLR/NGS010

The Reception of Structured Proportionality in Australian Constitutional Law

Publisher: SAGE Publications

Date: 04-06-2021

DOI: 10.1177/0067205X211016581

Abstract: A majority of the High Court has incorporated a test of structured proportionality into its implied freedom of political communication case law. Structured proportionality developed in the context of constitutional rights adjudication and requires courts to engage in substantive, values-based reasoning. The Australian Constitution does not contain a Bill of Rights and the High Court is known for its commitment to legalism and textualism. Against this background, one might think that the High Court would interpret the elements of structured proportionality so that they assume a highly distinctive form in Australian constitutional law. However, a close reading of recent implied freedom of political communication case law demonstrates that generally this is not the case. Admittedly, the High Court’s approach to the necessity and balancing stages departs from the case law of the Federal German Constitutional Court. However, once a broader comparative perspective is adopted, it becomes apparent that the High Court’s approach is not unusual, especially for courts that are new to applying structured proportionality. By adopting structured proportionality, the High Court may have aligned the implied freedom of political communication with a global model of constitutional rights enforcement. The Australian constitutional context may also be less distinctive than is sometimes supposed.

If you record, they will not come – but does it really matter? Student attendance and lecture recording at an Australian law school

Publisher: Informa UK Limited

Date: 07-01-2020

DOI: 10.1080/03069400.2019.1697578

Reasonableness in Retreat? The Judgment of the South African Constitutional Court in Mazibuko v City of Johnnesburg

Publisher: Oxford University Press (OUP)

Date: 26-03-2011

DOI: 10.1093/HRLR/NGR002

Regulating Political Advocacy by Charities Liberally

Publisher: SAGE Publications

Date: 12-01-2023

DOI: 10.1177/08997640221145116

Abstract: In countries such as Australia, Canada, the United Kingdom, and the United States, whether certain classes of civil society groups are eligible to receive state support (by way of tax and other concessions) is primarily based on the entity’s intended purpose. Yet governments often view the advocacy, electioneering, or lobbying activities that are the means adopted by some civil society organizations to achieve their purposes, as unjustified attempts to intervene in the political process. Attempts to restrict these activities are, thus, not uncommon but raise challenges to fundamental tenets of liberal democracies. This article uses recent Australian experience as a case study to analyze such attempts through rule of law and freedom of expression lenses. It focuses on advocacy and electioneering via peaceful protest/civil disobedience activities and argues that charities have a valuable role to play as political actors and that any restrictions should meet the requirements of certainty and proportionality.

University Of Western Australia

Location: Australia

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University Of KwaZulu-Natal

Location: South Africa

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University Of Oxford

Location: United Kingdom of Great Britain and Northern Ireland

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Linkage Infrastructure, Equipment And Facilities - Grant ID: LE210100043

Start Date: 05-2021

End Date: 05-2022

Amount: $539,000.00

Funder: Australian Research Council

Linkage Infrastructure, Equipment And Facilities - Grant ID: LE230100159

Start Date: 2023

End Date: 12-2024

Amount: $319,046.00

Funder: Australian Research Council