Cornelia Koch

The Voting Rights of Incarcerated Australian Citizens

Drawing on and combining political science and legal frameworks, this article explores the validity of disenfranchising Australian prisoners. The authors examine and critically assess the various arguments used in Australia by both legislators and High Court Justices to defend the practice of disenfranchisement. Such arguments are assessed against liberal democratic principles as well as jurisprudence arising from cases in settings that provide protection for electoral rights in formal charters of rights. The authors show that in settings that entrench voting rights in the Constitution, any infringement attracts strict scrutiny from the courts. Courts insist that any abridgement of voting rights should serve a legitimate government purpose and be proportionate to that purpose. The arguments made for prisoner disenfranchisement by legislators in the Australian context invariably fail both parts of this test.

The Ballot Behind Bars after Roach: Why Disenfranchise Prisoners?

This article explores and critiques the rationales for disenfranchising prisoners advanced by politicians and relied on by the majority of the High Court of Australia in the recent case of Roach v Electoral Commissioner. It argues that none of the arguments for removal of the right to vote from prison inmates are persuasive. While Australian constitutional history makes it probably inevitable that some bans on prisoner voting are constitutionally valid, the onus is on the Australian Parliament to demonstrate leadership and give prisoners the right to vote.

Can and Should Burqas Be Banned? - The Legality and Desirability of Bans of the Full Veil in Europe and Australia

The last two decades have seen growing debate in many countries about the appropriateness of displaying religious symbols in the public sphere. Much discussion has focused on the wearing of religiously inspired dress and in particular Islamic dress. The latest chapter in this saga are attempts to ban in public the burqa and niqab, clothing worn by some Muslim women which covers the face.The primary focus of this article is not on the merits, or otherwise, of these arguments. Instead it examines whether legislative bans in a number of jurisdictions would be able to withstand challenges in court. First, we consider the developments in Europe, with particular emphasis on France and Belgium where the most concrete steps towards banning the burqa and niqab have been taken and examine whether enacted or proposed legislation will withstand scrutiny under the European Convention on Human Rights (‘ECHR’). We discuss in the second part whether similar bans could be validly enacted in Australia and show that the only legal protection in this jurisdiction is domestic anti-discrimination law.

The Sky is Falling If Judges Decide Religious Controversies! - Or is it? The German Experience of Religious Freedom under a Bill of Rights

This chapter challenges the view often put forward by opponents of bills of rights that morally and politically controversial questions are for the elected Parliament alone and are not suitable for determination by courts. The challenge is based on an examination of two of the most controversial cases ever decided by the German Constitutional Court, the Classroom Cruzifix and the Teacher Headscarf Case, and the public’s reaction to these cases. The argument is divided into seven parts. Following the introductory section is an explanation of some fundamental aspects of the German constitutional system, including an introduction to the relevant principles of constitutional law and interpretation. This provides the background to the discussion of the guarantee of religious freedom under the German bill of rights and the Constitutional Courts approach to this guarantee in part three. The fourth section explores the Courts jurisprudence on the free exercise of religion in public schools, culminating in the Classoom Crucifix and Teacher Headscarf cases. Then, the public and scholarly debate surrounding these cases is portrayed. The next section explores empirical research that demonstrates that the Constitutional Court’s authority and reputation did not suffer long-term damage from being the target of much criticism. Likewise, the legal and political system of the Federal Republic of Germany did not suffer as a consequence of the Courts decisions. The chapter concludes that a mature legal and political system can survive highly charged controversies being decided by the courts unscathed, as demonstrated by the German experience. Therefore, the fact that courts may be drawn into controversial debates and become the object of public criticism is not a valid argument against a bill of rights.

Commission of the European Communities v. Jégo-Quéré & Cie Sa. Case C-263/02 P

The approach that the Court of Justice of the European Communities (ECJ) has taken to the standing of private parties seeking to bring actions for annulment of European Community (EC) measures in the Community courts (the ECJ and the Court of First Instance (CFI)) has been one of the most widely debated and criticized areas of EC law. In Jego-Quere v. Commission of the European Communities (Commission), the CFI was required to rule on the admissibility of an action brought by an individual applicant against a Commission regulation. In a bold move the CFI fundamentally changed the requirements for the admissibility of actions brought by natural or legal persons against EC legislation in the Community courts. The new rules did not, however, survive the appeal to the ECJ. In Commission of the European Communities v. Jego-Quere & Cie SA, the Court reaffirmed its long-established test for the standing of private applicants. This article discusses both decisions and comments critically on the ECJs unnecessarily restrictive approach to locus standi for private parties.