Title: The scope of judicial rights interpretation under bills of rights ( and its political consequences)
Abstract: The experience of comparable Commonwealth jurisdictions suggests that judicial rights interpretation under Australian bills of rights will generate controversy and have political consequences. This article argues that these consequences include the claim that judges have sometimes engaged in illegitimate judicial legislation (not interpretation), with the greater politicisation of the judicial appointments process being the likely end result. However, an analysis of the relevant bills of rights jurisprudence in New Zealand and the United Kingdom demonstrates that the capacity of the courts to deliver an interpretive remedy in rights cases through a legitimate process of construction is significant. The problem, then, for Australian judges in bill of rights jurisdictions is that even when they seek to honour the parliamentary directive to protect rights where possible, this action may generate a hostile political reaction. It is, therefore, argued that the operation (and possible future enactment) of bills of rights throughout Australia must be accompanied by reform of the judicial appointments process. This is necessary to better secure the independence of those Australian courts with the difficult and politically sensitive task of applying a bill of rights.
Publication Year: 2009
Publication Date: 2009-01-01
Language: en
Type: article
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Cited By Count: 1
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