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?

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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 bill of rights would establish their values in the basic law of the land to prevail even over Parliament's statutes. It would need a difficult constitutional amendment to change a rule introduced by a judge. This would appear to be less democratic by Dworkin’s standards where he believes democracy is most valuable because it is allows the people to govern themselves[1]. This self-governmental power would retract if a Bill of Rights is enacted.

Furthermore, however comprehensive a bill of rights would be, it would require squeezing difficult problems and ‘hard’ cases into the artificially limited categories expressed in a written bill of rights. It would be inherent that any language would expressly state, and thereby confine, the basic rights of the people. It would appear that a Rule of Law society provides publicly known guarantees to its citizens- through legal rules and administrative regulations; that none are above the law and all could expect equal application of the law in a predictable fashion. This would be desirable because of its uniformity, consistency and formal equality. Australia has a Constitutionally-limited legal system. A rule of law society as described by Kelsen, in such a Constitutional environment would flourish, because of the enshrined separation of powers –countering any risk of arbitrary rule.

Some argue the Rule of Law is undesirable due to its ineffectiveness at stopping administrative decisions- through privative clauses in statues[2]. 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...
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