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

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.