The common law and the Constitution as protectors of rights in Australia

Gray, Anthony (2010) The common law and the Constitution as protectors of rights in Australia. Common Law World Review, 39 (2). pp. 119-156. ISSN 1473-7795

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Abstract

This paper considers the extent to which the common law or the Constitution restrict the ability of government to pass laws infringing upon the rights of citizens. It explores the historical basis for such jurisdiction and dicta supporting such a view. Such an approach draws support from notions of the sovereignty of the people and social contract theory, and a re-interpretation of Diceyan Parliamentary supremacy. It considers arguments that such an approach is anti-democratic or that it confers 'too much' power on judges.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Published version deposited in accordance with the copyright policy of the publisher
Depositing User: Dr Anthony Gray
Faculty / Department / School: Historic - Faculty of Business - School of Law
Date Deposited: 15 Jul 2010 05:10
Last Modified: 02 Jul 2013 23:53
Uncontrolled Keywords: common law constitutionalism; Diceyan theory; parliamentary supremacy; social contract
Fields of Research (FOR2008): 18 Law and Legal Studies > 1801 Law > 180108 Constitutional Law
18 Law and Legal Studies > 1801 Law > 180114 Human Rights Law
16 Studies in Human Society > 1606 Political Science > 160609 Political Theory and Political Philosophy
Socio-Economic Objective (SEO2008): C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940405 Law Reform
URI: http://eprints.usq.edu.au/id/eprint/8008

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