University of Queensland Law Journal

Articles from Vol. 30, No. 1, June

Constitutional Implications Revisited
I INTRODUCTION It is intriguing how lawyers react so differently to very inventive judicial decisions. When I first heard about the High Court's recognition, in ACTV and Nationwide News, (1) of an implied freedom of political communication, I was...
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Distorting the Law of Defamation
In Theophanous v The Herald & Weekly Times Ltd (1) and Stephens v West Australian Newspapers Ltd (2) the High Court 'constitutionalised' the law of defamation. The ' Theophanous defence' that it created was short-lived. In Lange v Australian Broadcasting...
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Freedom of Speech and Australian Political Culture
I INTRODUCTION The 1992 judgments (1) constituted a high watermark of recognition of freedom of speech in Australian constitutional and political history. Given the absence of an express constitutional, or federal statutory, protection of free speech...
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'Insult and Emotion, Calumny and Invective': Twenty Years of Freedom of Political Communication
Freedom of communication ... is so indispensable to the efficacy of the system of representative government for which the Constitution makes provision that it is necessarily implied in the making of that provision. (1) I INTRODUCTION This sentence,...
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Politicizing the Judges: Human Rights Legislation
Some 20 years ago when the decisions in ACTV (1) and Lange (2) were handed down, there was jubilation in the corridors of some of the 'progressive' law campuses of Australia. The cry went up, 'Dare to be adventurous!' The realpolitik of the separation...
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Romance, Realism, and the Legitimacy of Implied Rights
Passage of the Canadian Charter of Rights and Freedoms in 1982 empowered Canadian judges not only to determine whether legislation infringed constitutionally protected rights, but also to declare legislation to be of no force or effect--to 'strike...
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The Brennan Conception of the Implied Freedom: Theory, Proportionality and Deference
I INTRODUCTION The landmark decisions in Nationwide News Pty Ltd v Wills (1) and Australian Capital Television Pty Ltd v Commonwealth (2) were delivered by the High Court on September 30, 1992. The cases found there was a right to engage in political...
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The Implied Freedom of Political Communication, Twenty Years On
I INTRODUCTION Controversy over the initiatives of the Mason court relating to implied constitutional 'freedoms' (1) has died down as subsequent more conservative courts, for good or ill, have not utilised the potential of this innovative approach...
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Towards the 'Best Explanation' of the Constitution: Text, Structure, History and Principle in Roach V. Electoral Commissioner
I It is now commonplace, following the lead of Philip Bobbitt, to distinguish several different modalities of constitutional interpretation, which Bobbitt respectively labelled as 'textual', 'structural', 'historical', 'doctrinal', 'prudential'...
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