Like what you've read?

On Line Opinion is the only Australian site where you get all sides of the story. We don't
charge, but we need your support. Here�s how you can help.

  • Advertise

    We have a monthly audience of 70,000 and advertising packages from $200 a month.

  • Volunteer

    We always need commissioning editors and sub-editors.

  • Contribute

    Got something to say? Submit an essay.


 The National Forum   Donate   Your Account   On Line Opinion   Forum   Blogs   Polling   About   
On Line Opinion logo ON LINE OPINION - Australia's e-journal of social and political debate

Subscribe!
Subscribe





On Line Opinion is a not-for-profit publication and relies on the generosity of its sponsors, editors and contributors. If you would like to help, contact us.
___________

Syndicate
RSS/XML


RSS 2.0

Peering over the horizon: the legal landscape

By Ronald Sackville - posted Wednesday, 3 May 2006


A fundamental question

As important as these issues will be, there is a more fundamental question that the Australian community must face. It concerns the very nature of Australian democracy.

In one (increasingly fashionable) view, democracy is one-dimensional. If the government is elected by the people at free and fair elections, the system of government is democratic. It is this majoritarian view that seems to underlie efforts to “bring” democracy to countries in the Middle East that have never experienced freedom as understood in Western political theory.

The same majoritarian concept also seems to underpin the common criticism levelled at proposals to entrust “unelected judges” with the power to determine whether legislation is compatible with human rights norms. The critics are undeterred even where the ultimate legislative authority remains with Parliament.

Advertisement

True democracy is not, however, a one-dimensional concept. If there is one thing that modern history teaches, it is that even a freely elected government is capable of perpetrating egregious human rights abuses. Virtually all parliamentary democracies have recognised this truth by adopting, in one form or another, a bill of rights which mirrors international human rights norms. The major exception is Australia.

In times of anxiety and fear, individual rights inevitably come under threat. The primary threat to individual freedom is not from terrorists or their fellow travellers, but from well-intentioned measures that curtail liberty in the interests of national security. High levels of anxiety and fear are usually sufficient to ensure the requisite degree of public support for the measures.

In Australia, there are relatively few mechanisms to curb excessive legislative or political responses to perceived dangers. The Constitution is bereft of a bill of rights and those few provisions that expressly protect individual rights have generally been given a narrow meaning.

While it is open to the States to introduce their own statutory guarantees of human rights, such legislation can have little effect on Commonwealth laws or executive actions.

International law, which exerted a powerful influence on domestic law in the aftermath of World War II, is now less and less a constraint on legislative or executive action, particularly when national security is thought to be at stake.

The greatest human right, so it is repeatedly said, is the right to life and safety, as if this provides an answer to the dilemma of reconciling the public interest in security with individual rights and freedoms.

Advertisement

There is no doubt that Australia will remain a democracy for the foreseeable future. But what kind of democracy will it be? The answer lies over the horizon.

  1. Pages:
  2. 1
  3. 2
  4. Page 3
  5. All

Article edited by Margaret-Ann Williams.
If you'd like to be a volunteer editor too, click here.

This is an edited extract of an address, “Peering over the horizon: it’s dark on the other side”, given to the Australian Law Reform conference, April 10-12, 2006.



Discuss in our Forums

See what other readers are saying about this article!

Click here to read & post comments.

Share this:
reddit this reddit thisbookmark with del.icio.us Del.icio.usdigg thisseed newsvineSeed NewsvineStumbleUpon StumbleUponsubmit to propellerkwoff it

About the Author

Justice Ronald Sackville is a Judge of the Federal Court of Australia.

Other articles by this Author

All articles by Ronald Sackville

Creative Commons LicenseThis work is licensed under a Creative Commons License.

Article Tools
Comment Comments
Print Printable version
Subscribe Subscribe
Email Email a friend
Advertisement

About Us Search Discuss Feedback Legals Privacy