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After the Republic a Bill of Rights

By Michael Lee - posted Thursday, 15 July 1999


Ordinary Legislation And Parliamentrary Sovereignty

It is often suggested there is no need for a Bill of Rights because the parliament can legislate to protect rights. This notion is based on the false and flawed premise that governments will do just that. However good their intentions may be, governments by their nature, tend to avoid making decisions that are controversial or politically difficult and this is more likely when it comes to social issues.

An excellent example of this legislative inaction was outlined by Justice Michael Kirby in an address to the Queensland Chapter of the Young Presidents Association in 1997. He said, "One hundred and fifty years after representative government was introduced in Australia, it was left to seven unelected judges to remove the patently false assertion that Australia was an empty continent at the time of settlement."

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There is a second leg to this which is the question of whether the parliament should be in the position to determine what are basic civil and political rights. Is the parliament sovereign on such fundamental issues, or are the people?

Judicial Activism

It has also been suggested that there is no need for a Bill of Rights because the common law has sufficiently resolved and in many cases protected basic civil and political rights. Indeed it has been suggested that over a period of time the High Court will create a judicial Bill of Rights.

There are two problems with this notion.

Firstly, why should the court, an unelected and unaccountable body, determine the rights of individuals? Secondly, the common law is extremely limited.

It is limited by the fact that it is opportunistic - change can only occur when a case presents itself.

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It is limited by precedent. The determination of a High Court decision may not be binding upon that court in a proceeding case but normally it is extremely persuasive. Lower courts are bound by such decisions.

Finally it is limited in that a decision of the court cannot provide general principles because it is based on individual cases with unique facts.

A Bill Of Rights Limits Rights

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About the Author

Michael Lee is a Brisbane based consultant who assesses economic loss in litigation matters. His interests include human rights, American political history, and Native Title.

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