Constitutional Rights In Australia

1536 Words7 Pages
The General Assembly of the United Nations state “democracy is a universal value based on the freely expressed will of people to determine their political, economic, social and cultural systems and their full participation in all aspects of their lives,” This essay will focus on the development of constitutional law in regards to implied rights regarding civil liberties of the freedom of movement and the freedom to associate that form vital parts our democracy. In discussing how the Constitution has developed and changed over time in regards to these rights it is necessary to compare and contrast cases where the High Court has applied the Constitution to assert democracy and subsequently they have broadened their interpretation and redefined…show more content…
This is seen in the case South Australia v Totani in 2010. In a move to outlaw motorcycle gangs various State governments have enacted legislation, South Australia introduced the Serious and Organised Crime (Control) Act 2008. (‘the SOCC Act’). The object of the Act is “the disruption and restriction of organisations involved in serious crime so as to protect the public from the violence associated with such organisations.” On 25 May 2009, the South Australian Magistrate Court placed control orders on Donald Hudson and Sandro Totania members of the Finks Motorcycle Club, prohibiting them from associating with other members of the Motorcycle Club under Section 14(1) of the SOCC Act. They commenced proceedings in the Supreme Court claiming s14(1) was invalid which was held to be correct, the State of South Australia appealed against this decision to the High…show more content…
They invoked the principles applied in the Kable case, which establishes the High Court’s use of Chapter III of the Constitution and the principle of strict separation of judicial power. State legislatures are unable to invest a “State Court with functions or powers which are incompatible with its status as a court vested with federal jurisdiction.” In the case, Hayne J stated the magistrate court must uphold the ‘institutional integrity of the Court … But it is no part of the function of the Magistrates Court under SOCCA to determine what the particular defendant has done, or may do in the future’ According Ratnapala and Crowe “Totani represents a significant extension of the institutional integrity doctrine to state courts other than supreme courts.” However State governments face ongoing challenges in using control orders to combat crime while upholding this ‘institutional integrity’ and ensuring the rights and liberties of citizens are

More about Constitutional Rights In Australia

Open Document