Constitutionally Entrenched Bill Of Rights Essay
FOUNDATIONS OF LAW TAKE HOME EXAM
QUESTION I – Does the fact that Australia lacks a constitutionally entrenched Bill of Rights which Courts can use to invalidate legislation make it more or less democratic, more or less rule of law-compliant, more or less legitimate?
A “bill of rights”, such as that incorporated into the US Constitution, refers to a list of rights which forms part of a country’s constitution. Whilst a constitutional bill of rights will certainly address the issue of acquiring a legal mechanism to transparently set out human rights, there is considerable division over the conflicting strengths and weaknesses of implementing such a fully entrenched system of human rights protection into the Australian legal system.
One must find it difficult to give an accurate opinion on whether a constitutionally entrenched Bill of Rights will endeavour to create a more legitimate society. It is true that judges are introducing fundamental human rights jurisprudence by the techniques of the common law, and that legislators are enacting laws based upon international human rights principles. However, it remains valid to point out that these modes of introducing fundamental human rights, lack the legitimacy of democracy. It is …show more content…
A privative clause effectively limits or excludes judicial review of administrative action. This is countered by the Constitution’s limits on the Parliament. The Constitution itself assumes the rule of law in its clauses[3]. By this it is meant the High Court is guaranteed an original jurisdiction ‘in all matters, in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’[4]. Theoretically, a privative clause which attempts to exempt administration from review can be inspected and reversed in the High Court, maintaining a government under
QUESTION I – Does the fact that Australia lacks a constitutionally entrenched Bill of Rights which Courts can use to invalidate legislation make it more or less democratic, more or less rule of law-compliant, more or less legitimate?
A “bill of rights”, such as that incorporated into the US Constitution, refers to a list of rights which forms part of a country’s constitution. Whilst a constitutional bill of rights will certainly address the issue of acquiring a legal mechanism to transparently set out human rights, there is considerable division over the conflicting strengths and weaknesses of implementing such a fully entrenched system of human rights protection into the Australian legal system.
One must find it difficult to give an accurate opinion on whether a constitutionally entrenched Bill of Rights will endeavour to create a more legitimate society. It is true that judges are introducing fundamental human rights jurisprudence by the techniques of the common law, and that legislators are enacting laws based upon international human rights principles. However, it remains valid to point out that these modes of introducing fundamental human rights, lack the legitimacy of democracy. It is …show more content…
A privative clause effectively limits or excludes judicial review of administrative action. This is countered by the Constitution’s limits on the Parliament. The Constitution itself assumes the rule of law in its clauses[3]. By this it is meant the High Court is guaranteed an original jurisdiction ‘in all matters, in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party’[4]. Theoretically, a privative clause which attempts to exempt administration from review can be inspected and reversed in the High Court, maintaining a government under