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?

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 preferable that a charter of human rights should be accepted and endorsed by the people. Then it rests upon the legitimacy of the people's decision. At the moment, the introduction into law of basic rights by judges in their particular decisions or by specific legislation lacks this element of popular endorsement and legitimacy.

On the other hand a Bill of Rights would represent a turning away from the principle of parliamentary sovereignty which, with federation, is the bedrock principle of Australia’s polity. It would transfer great power from the elected representatives of the people in all their variety, to the judges. But the judges, as recent experience shows, are generally conservative, middle-aged men. They are unelected. A... [continues]

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