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How do you protect rights without a Bill of Rights? Australia does
not have a national bill or charter of rights and looks further
away than ever from adopting one. But it does have a range of
individual elements sourced from common law, statute and the
Constitution which, though unsystematic, do provide Australians
with some meaningful rights protection. This book outlines and
explains the unique human rights journey of Australia. It moves
beyond the criticisms long made of the Australian position - that
its 'formalism', 'legalism' and 'exceptionalism' compromise its
capacity for rights protection - to consider how the many elements
of its novel legal structure operate. This book analyses the
interlocking legal framework for the protection of rights in
Australia. A key theme of the book is that the many different
elements of a fragmented scheme can add up to something
significant, albeit with significant gaps and flaws like any other
legal rights protection framework. It shows how the jumbled
influences of a common law heritage, a written constitution,
differing paths taken by jurisdictions within a single federal
state, statutory and common law innovations and a strong dose of
comparative legal influences have led to the unique patchwork of
rights protection in Australia. It will provide valuable reading
for all those researching in human rights, constitutional and
comparative law.
How do you protect rights without a Bill of Rights? Australia does
not have a national bill or charter of rights and looks further
away than ever from adopting one. But it does have a range of
individual elements sourced from common law, statute and the
Constitution which, though unsystematic, do provide Australians
with some meaningful rights protection. This book outlines and
explains the unique human rights journey of Australia. It moves
beyond the criticisms long made of the Australian position - that
its 'formalism', 'legalism' and 'exceptionalism' compromise its
capacity for rights protection - to consider how the many elements
of its novel legal structure operate. This book analyses the
interlocking legal framework for the protection of rights in
Australia. A key theme of the book is that the many different
elements of a fragmented scheme can add up to something
significant, albeit with significant gaps and flaws like any other
legal rights protection framework. It shows how the jumbled
influences of a common law heritage, a written constitution,
differing paths taken by jurisdictions within a single federal
state, statutory and common law innovations and a strong dose of
comparative legal influences have led to the unique patchwork of
rights protection in Australia. It will provide valuable reading
for all those researching in human rights, constitutional and
comparative law.
In this age of statutes and human rights the common law principle
of legality has assumed a central importance. The principle holds
that unless Parliament makes unmistakably clear its intention to
curtail or abrogate a common law right, freedom or principle, the
courts will not construe a statute as having that operation. As
Lord Hoffmann famously observed, this "means that Parliament must
squarely confront what it is doing and accept the political cost".
The principle of legality is now central to the operation of
Australian and New Zealand public law. Yet its content, methodology
and scope remain elusive and has never been examined in detail.
This book fills that gap by drawing together leading judges,
practitioners and scholars to explore a range of interesting issues
and challenges for the application of the principle of legality and
its future trajectory: How does the principle operate? Which rights
and freedoms fall within its scope and why? What is its
relationship to the (so-called) common law bill of rights? Has
proportionality a role to play in its application? How, if at all,
does it differ from the presumption with international law? And in
the construction of statutes does the principle serve to fulfil or
frustrate the will of Parliament?
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