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Freedom on the Wallaby: A Comparison of Arguments in the Australian Bill of Rights Debate

Carrick, B. (2010) Freedom on the Wallaby: A Comparison of Arguments in the Australian Bill of Rights Debate. The Western Australian Jurist, 1 . pp. 68-114.

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Proponents of a bill of rights identify groups of people in Australia
whose liberties have not been respected in the recent past and argue that this shows the need for a bill of rights. Critics dispute this, and point to Australia’s constitutional and electoral systems, as ones that are capable of protecting liberties. In response, proponents argue that constitutional rights are too narrow, treaties are not widely implemented, and statutes offer only piecemeal protection.

Critics argue that democracy would be negatively impacted by a bill of rights because judges would decide political questions, judicial activism would be encouraged and people would become complacent. Proponents argue that, at present, democracy does
not protect minorities and a more holistic concept of democracy
is needed.

The legal system would be impacted by a bill of rights, according to proponents, through increased access to justice and improved education of judges. Critics argue that the judiciary would be politicised, litigiousness increased and respect for the courts
reduced. It is also unclear whether a statutory bill of rights at the federal level would be constitutionally valid.

Finally, critics and proponents disagree about the effect that a bill
of rights would have on Australian culture and the overall level of freedom within the nation. It is concluded that a constitutional bill of rights would address an inherent weakness in
democracy but at the risk of significant adverse consequences, which at present outweigh the value of any gain . A statutory bill of rights would carry risks for the quality of democracy and the legal system, and its protection would be illusory.

Item Type: Journal Article
Murdoch Affiliation(s): School of Law
Publisher: Western Australian Legal Theory Association (WALTA), School of Law, Murdoch University
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