Any system of legal protection based on the Supreme Court involving a declaration of rights from the Constitution is inadequate. Implied rights are unlikely to be widely known and affirmed if they are created by the Supreme Court, even if they are solidly supported in the text of the Constitution. They do not have the sense of social participation that would be possible if the federal legislature had a legal or constitutional bill of rights in place. While judicial leadership is preferable to no leadership at all in terms of rights, it is a poor substitute for political and popular leadership. Building a legal culture in Australia will be extremely difficult if rights are not based on the commitment of the Australian people and their elected representatives. 2.7 To the extent that Australian law has protected and promoted rights and freedoms, it has long been the laws and judicial laws that do so. [9] In a speech in 2013, former High Court of Australia Justice John Dyson Heydon AC QC discussed some of the benefits of statutory and common law rights protection. He stated that statutes and common law often protect rights through “detailed and precise rules” and uphold “human rights directly and specifically”: Canada`s 1960 Bill of Rights, New Zealand`s Bill of Rights, 1990, and the Human Rights Act 1998 (United Kingdom) contain an out-of-court means of ensuring compliance. Under section 3 of the Canadian Bill of Rights, section 7 of the New Zealand Charter of Rights and section 19 of the Human Rights Act, the federal Minister of Justice, the Attorney General and the Attorney General are Attorneys General, respectively.

require a Minister of the Crown to report on legislation introduced in Parliament in order to identify inconsistencies and inconsistencies with the rights protected by the instrument concerned. The weakness of this approach is that it confers responsibility for detecting violations of government instruments that the legislation has proposed. One Canadian commentator suggested, “To give teeth to such a provision, a standing committee of the House of Commons would have to be established.” (93) The Federal Parliament has a central role to play in protecting the fundamental rights of the Australian people. To date, this role has not been fully fulfilled. Although Parliament has passed important legislation such as the Racial Discrimination Act 1975 (Cwlth) and its committees, such as the Standing Senate Committee on the Review of Bills, determine whether bills improperly infringe individual rights and freedoms, there is no law listing the fundamental rights associated with Australian citizenship. Nor does the Australian Constitution protect the fundamental rights of the Australian people. It does not contain a bill of rights, but only a few scattered provisions, such as the right to freedom of religion and freedom of interstate trade. See, for example, Jeremy Waldron, “The Core of the Case against Judicial Review,” 2006, The Yale Law Journal 1346. Hiebert contrasts the two “rival paths” of liberal constitutionalism with legal protection: one is the codification of rights, as in the United States; the other emphasizes parliamentary supremacy, as in Westminster-style parliamentary systems: Janet L. Hiebert, “Parliamentary Bills of Rights: An Alternative Model?” (2006) 69 Modern Law Review 7, 7-8. It is generally accepted that the rule of law and respect for human rights are linked.

The Universal Declaration of Human Rights states in its preamble that human rights must be protected by the rule of law, except in situations where rebellion against tyranny and oppression is the only way out. Ideally, people should want to respect the law and have confidence that the legal process will lead to fair outcomes. The right to challenge a racially discriminatory law is permitted by the Racial Discrimination Act (Cth). In Maloney v. Queen [2013] HCA 28, Ms. Monica Maloney challenged the validity of alcohol restrictions in Palm Island under the Liquor Act (Qld). This case raises an interesting discussion about the balance between protecting the right not to be racially discriminated against and the right to live in a safe community. 2.37 In Mabo v. Queensland [No. 2], Brennan J.

stated that “international law has a legitimate and important influence on the development of the common law, particularly when international law declares the existence of universal human rights”. [65] 2.38 However, even the international instruments to which Australia has acceded do not create binding domestic law in Australia.