Adrienne Stone

Protecting Rights Without a Bill of Rights: Institutional Performance and Reform in Australia

Introduction, Jeffrey Goldsworthy Institutional Performance: Australian exceptionalism: rights protection without a Bill of Rights, Brian Galligan F.L. (Ted) Morton The performance of Australian legislatures in protecting rights, John Uhr Improving legislative scrutiny of proposed laws to enhance basic rights, parliamentary democracy, and the quality of law-making, Bryan Horrigan The performance of administrative law in protecting rights, Robin Creyke Australias constitutional rights and the problem of interpretive disagreement, Adrienne Stone Particular Human Rights Issues: Rights and citizenship in law and public discourse, Helen Irving Chained to the past: the psychological Terra Nullius of Australias public institutions, Megan Davis Constitutional property rights in Australia: reconciling individual rights and the common good, Simon Evans International Perspectives: American judicial review in perspective, Robert Nagel The unfulfilled promise of dialogic constitutionalism: judicial-legislative relationships under the Canadian Charter of Rights and Freedoms, Christopher Manfredi Strategies for institutional reform: a modest (but robust) defence of statutory bills of rights, Jeremy Webber Australias first Bill of Rights: the Australian Capital Territorys Human Rights Act, Hilary Charlesworth An Australian Rights Council, George Winterton Human rights strategies: an Australian alternative, Tom Campbell Index.

Freedom of Political Communication, the Constitution and the Common Law

Perhaps the most remarkable feature of Australian constitutional development in the past decade has been the advent of the constitutional protection of political communication.1 One important effect of this development has been to focus Australian constitutional debate on the long-standing and rich tradition of constitutional protection of speech in the United States. Reference to American constitutional law is not unprecedented. The United States Constitution has long been a source for Australian constitutional lawyers. It was extensively referred to by the framers of the Australian Constitution2 and, over the century since the framing, it has been a constant point of reference for the High Court of Australia.3 However, the

Constitutions, gender and freedom of expression: the legal regulation of pornography

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right but, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family. A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas. In this chapter, we examine this debate that ensued through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

The Comparative Constitutional Law of Freedom of Expression in Asia

The chapter will review how the distinctive political and constitutional cultures of four Asian countries – Japan, Singapore, Malaysia and India – affect the articulation of freedom of expression principles by courts in those countries. Rather than attempting an exhaustive analysis of particular categories of freedom of expression protection and limitations in each of these four jurisdictions, our analysis will draw out particular aspects of protections and limitations that help to illustrate the broader constitutional cultures in each of these jurisdictions. Before doing so, we will review the fundamental elements of any constitutional principle of freedom of expression (including its formal manifestation, structural elements and doctrinal forms), noting some particularities evident in Asian countries.