''Leeth v Commonwealth'', is a

High Court of Australia The High Court of Australia is the apex court of the Australian legal system. It exercises original and appellate jurisdiction on matters specified in the Constitution of Australia and supplementary legislation. The High Court was establi ...

case that held that there was no implied right of legal equality in the

Australian Constitution The Constitution of Australia (also known as the Commonwealth Constitution) is the fundamental law that governs the political structure of Australia. It is a written constitution, which establishes the country as a Federation of Australia, ...

Background

The ''Commonwealth Prisoners Act'',''Commonwealth Prisoners Act 1967''
(Cth). provided for a non-parole period, which differed depending on which State the prisoner was convicted in. The claim was that the Act authorised the unequal treatment of Commonwealth offenders.

Decision

Mason CJ, Dawson and McHugh JJ denied that the Constitution contained an implied right to substantive legal equality, and only recognised procedural inequality. Deane and Toohey JJ found an implied right

substantive equality Substantive equality is a substantive law on human rights that is concerned with equality of outcome for disadvantaged and marginalized people and groups and generally all subgroups in society."What is substantive equality?" (PDF). Equal Opportun ...

, and while Gaudron and Brennan JJ did not agree with Deane and Toohey JJ, they did not disagree either. However, Brennan J did not agree that the right had been violated, and thus there was a majority for the outcome that the Act was not invalid. The basis for the implied right of substantive equality (as advocated by Deane and Toohey JJ) comes from the fact that the constitution is a free agreement between the people of the colonies, and these pre-existing rights continued after

federation A federation (also called a federal state) is an entity characterized by a political union, union of partially federated state, self-governing provinces, states, or other regions under a #Federal governments, federal government (federalism) ...

. In the absence of words that deny such equality, these pre-existing rights should continue to exist. This notion of equality is said to be vested in the courts as created in Chapter III of the Constitution, and these courts are to treat them "fairly" and "impartially".

References

* Winterton, G. et al. ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney.

Background

Decision

See also

References

Further reading