The Legal Protection of Rights in Australia

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. Foreword Table Of Contents List Of Contributors 1. Rights, Rhetoric and Reality: An Overview of Rights Protection in Australia 2. Australia's Constitutional Design and the Protection of Human Rights 3. Chapter III of the Constitution and the Protection of Due Process Rights 4. The High Court's Implied Rights Experiment 5. The Reception of International Law in Constitutional Litigation – The Al-Kateb Battle and its Aftermath 6. International Law, Administrative Powers and Human Rights: The Legacy of Teoh 7. The Australian Human Rights Commission 8. The Human Rights (Parliamentary Scrutiny) Act 2011 (Cth): A Failed Human Rights Experiment? 9. The Nature and Limitations of Commonwealth Anti-Discrimination Law 10. 'Culture, What Culture?' Why We Don't Know if the ACT Human Rights Act is Working 11. The Victorian Charter: A Slow Start or Fundamentally Flawed? 12. International Human Rights Treaties and Institutions in the Protection of Human Rights in Australia 13. The Recognition and Protection of Indigenous Rights 14. Federalism, Public Interest Advocacy and Marriage Equality in Australia 15. Freedom of Religion 16. A Fair Trial for Accused Terrorists 17. A Search for Rights: Judicial and Administrative Responses to Migration and Refugee Cases 18. Proportionality and the New Postwar Juridical Paradigm: A Challenge to Australian Exceptionalism? 19. A Common Law Bill of Rights 20. Against a Constitutional Bill of Rights in Australia 21. Designing an Australian Bill of Rights: The Normative Trade-offs Index "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 {u2013} that its 'formalism', 'legalism' and 'exceptionalism' compromise its capacity for rights protection {u2013} 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"-- Provided by publisher