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Aboriginal Justice Agreement External link. In its fourth phase - Burra Lotjpa Dunguludja - was launched. They form part of the history of the common law, embodying key moments in constitutional history, such as the sealing of the Magna Carta in , [1] the settlement of parliamentary supremacy following the Glorious Revolution of and the enactment of the Bill of Rights Act In the modern period, and subject to certain limitations which, for most persons, were of not the least importance, individuals could worship as they pleased, hold whatever meetings they pleased, participate in political activities as they wished, enjoy a very extensive freedom of expression and communication, and be wholly unthreatened by the grosser forms of interference with personal liberty, such as officially sanctioned torture, or prolonged detention without trial.
They are generally enforceable. They are specifically adapted to the resolution of particular problems. Their makers seek, with some success, to make them generally coherent with each other and with the wider legal system. This may be seen to complement work that considers other ways to protect rights—such as by creating new offences and new causes of action, or by enacting a bill of rights. However, as part of the context of this analysis, it is useful to first consider how these rights are protected in law from statutory encroachment.
Broadly speaking, some protection is provided by the Australian Constitution and by rules of statutory construction, such as the principle of legality. These are discussed generally below and more fully throughout the report.
The rights expressly protected by the Constitution are:. This approach was adopted for the most part by the Australians in constitution-making. It explains in large degree the shortage as it is now perceived of explicit statements of ideals and guarantees of rights, and descriptions of essential human and national attributes. With a few exceptions, our framers relied on other mechanisms for protecting rights, including constitutional conventions; the common law; presumptions of statutory interpretation; and community attitudes, of tolerance and respect for rights, expressed through the ballot box.
They preferred to place their trust in Parliament to preserve the nature of our society and regarded as undemocratic guarantees which fettered its powers. Their model in this respect was, not the United States Constitution, but the British Parliament, the supremacy of which was by then settled constitutional doctrine.
We should not underestimate the power of the common law constitution to protect fundamental rights, and the central role it ascribes to the individual conscience in testing the moral credentials of law, or rather of what purports to be law but may, on inspection, prove to be an infringement of the rule of law. In Australia, it has not been applied to invalidate unambiguous statutes.
Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
This could act as a clear statement of parliamentary support for the principle of legality and further protect fundamental rights and freedoms from statutory limitation. Nor do they abrogate the power of the Commonwealth Parliament to make laws that are inconsistent with the rights and freedoms set out in these instruments. Drug Offences.
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Section OK, got it. Prison as a Last Resort Although the judgment in Robertson was delivered by Justice Simpson, the remaining members of the three judge panel — Justice Harrison and Justice Davies — agreed with the decision in full. What is Drug Supply? Main Menu. Follow Us.
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