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March 28, 2017 | Nonfiction 2 | By admin | 0 Comments

By Harris

The final hundred years have visible many social alterations in Australia. the various shortcomings in Australias structure were exposed,leading to the present debate on an Australian republic.

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1992) 177 CLR 106. (1979) 144 CLR 633, 668. (1988) 166 CLR 1. (2001) 177 ALR 436. Ibid, 458. Lange v Australian broadcasting Corporation (1997) 189 CLR 520, 567. 10 Chapter 2: A Bill of Rights norms, whereas an essential feature of a Bill of Rights is surely that it protects the right to engage in conduct and hold opinions which are contrary to prevailing norms. Finally, on a more practical level, the piecemeal nature of litigation means that a judge-made Bill of Rights would come into existence in an ad hoc manner, rather than as an integrated document, and, as was explained in the English case of Malone v Metropolitan Police Commissioner24 (where the court refused to create a new common law right to privacy), leaving to the courts the task of defining a Bill of Rights would impose upon them a burden which they would find it difficult, and perhaps impossible, to discharge.

10–12. 16 Chapter 2: A Bill of Rights and executive rather than of the judiciary. This argument thus appears to relate to the type of decision-making process, rather than to the question of whether a Bill of Rights skews the balance of power between the courts and Parliament (the issue addressed in the preceding paragraph). But what type of decision do courts make when they apply a Bill of Rights? Essentially this depends on how one drafts one’s Bill of Rights. The more specific the rights are, the less room for interpretation there is by the courts—so if, for example, instead of stating that suspects were entitled to ‘due process’ while in police custody, the Bill of Rights specified what ‘due process’ meant (for example, being informed of why one was being arrested and of one’s right to legal counsel, et cetera), the courts would not be put in the position of having to give meaning to the term ‘due process’.

In such cases, ‘heightened scrutiny’ applies, and the law will be valid if it serves an important, 41 What is commonly referred to as the Bill of Rights is contained in the first 10 amendments to the United States Constitution. 42 For a summary of the levels of review, see Vile, 2001, 96. 43 Rich, 1995, 12–13. 44 See, eg, Frontero v Richardson 411 US 677 (1973). 45 These judiciallycreated tests for judicial review are unsatisfactory for three principal reasons: the existence of different standards of review suggests that some rights are more deserving of protection than others; the vagueness of the tests creates a penumbra of uncertainty in relation to the fundamental constitutional question of how far the legislature and executive can go in limiting rights; and, finally, as products of judicial invention, the tests are vulnerable to modification, and even whole-scale elimination, by the courts which created them.

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