Rights Protection Without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights
(2002) 26 Melbourne University Law Review 285-324
40 Pages Posted: 26 Mar 2013
Date Written: July 2001
Since the enactment of the Human Rights Act UK (1998), Australia is the only common law country without a comprehensive system of legislative or constitutional protection of human rights and fundamental freedoms. Australia is at risk of legal and philosophical isolation because of this. A reassessment of Australia’s stance on human rights protection is necessary. A major facet of this reassessment is the link between democracy and human rights.
This article will focus on institutional models of human rights promotion and protection that are consistent with Australia’s democratic tradition. This article will explore modern notions of democracy, and the balance of power between the institutions of government under modern bills of rights. Particular features of modern bills of rights, which institutionalize the debate about human rights between the three arms of government, will be discussed. This discussion will proceed in the context of two modern rights protective instruments, the Canadian Charter of Rights and Freedoms 1982 and the British Human Rights Act 1998. This comparative study will be instructive for Australia, particularly as the question of enforceability of a bill of rights has historically been an impediment to the adoption of an Australian Bill of Rights.
Keywords: Bills of Rights, Human Rights Instruments, Australia, Canadian Charter, UK Human Rights Act
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