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In many ways, national constitutions are closely tied to their nation states. They are made with the authority of the people of the state. They are often important national symbols. Arguably, they need to be responsive to the circumstances of the state, in order to be effective. On the other hand, constitutional rights are becoming increasingly globalised, drawing freely on comparative experience as well as international human rights norms. This subject provides an international perspective on bills of rights, exploring both the similarities in norms and differences in the ways in which they are understood and given effect. In doing so, it provides insights into how new constitutional rights instruments might most effectively be designed and interpreted. It covers topics such as: arguments for and against bills of rights, the institutional arrangements for the enforcement of bills of rights, proportionality or limitation analysis, the horizontal application of bills of rights and socio-economic rights. The relevance of these issues to the interests of students in the class will be a theme throughout the subject. The lecturer is a leading comparative constitutional rights scholar, whose writings on The New Commonwealth Model of Constitutionalism have attracted world-wide attention.
Principal topics will include:
- The context: Australia today—its current Constitution and the Bill of Rights debate
- Constitutional rights in Canada: When they arrived (1982); what they look like; how the Charter of Rights and Freedoms balances the powers of the courts and legislatures and what Canada might have to offer Australia
- Comparisons with other forms of rights protection in the United States, the United Kingdom, and New Zealand
- Constitutional rights in federal systems of government (i.e., Canada, the United States and Australia)
- The literature and theory of judicial review: The nature of the debate, the relationship between courts and legislatures and judicial review under different models (i.e. ‘strong’ versus ‘weak’ rights-protecting instruments)
- Australia’s future options going forward.
Intended learning outcomes
This subject is designed to provide a forum for discussing, analysing and debating the merits of a constitutionalised or entrenched Bill of Rights. It will inform important debates taking place in Australia and enrich that discussion by direct comparisons to Canada and other nations who have adopted different models (some constitutional and others statutory) for the protection of rights. A student who has successfully completed this subject should:
- Be able to analyse and debate different regimes for the protection of rights
- Recognise the key similarities and differences between rights-protecting instruments (i.e., Canada, the United States, the United Kingdom and New Zealand
- Understand the underlying assumptions and institutional choices involved in adopting a particular model for the protection of rights
- Reflect on the relationship between legislatures and courts under a constitutional Bill of Rights
- Have an introduction to the literature on judicial review and debates on the legitimacy of review, as it is discussed outside Australia
- Gain important insight into the question of a Bill of Rights for Australia.
Last updated: 10 November 2023