LAWS1115 Lecture 4

Separation of Powers, Bill of Rights

Readings for Next Week

  • pp. 59-70 articles in the Learning Guide
  • Two articles online on the Victorian Charter of Rights

Assignment – Media reflection of the bill of rights debate

  • Find decent media clippings – newspaper clippings, transcripts, TV programs, expert blogs and articles from certain magazines may also be acceptable
    • No more than two media reports attached
    • 1,300 words excl. footnotes
    • Bounce ideas off said resources
    • Focus on bill of rights debate/nature of rights/role of judges in reviewing legislature

Bill of Rights

  • Rights: others ‘must’
    • Can be turned into a rule
  • Every time there’s a right, there’s a duty.
  • Legal rights: Rights which come from laws. It is possible that not all may agree, but they are not contentious in the sense of where they originate (statute, common law etc.) Everyone agrees regarding the legitimacy of the source.
  • Moral rights: Rights which do not come from written law. Their existence is highly contentious. People often do not agree. With the bill of rights, you’re often trying to change moral rights into legal rights.
  • Value of rights based on the fact that they are instrumental and lead to human welfare.
    • Inherently good – Rights are good because they give something else – minority school of thought
  • How to protect rights
    • Bill of rights?
      • Supposedly entrenches entitlements. In mid-20th century, only two countries had a bill of rights (France and the US); nowadays, almost every democratic country (except Australia and possibly Israel) have some form of a Bill of Rights.
        • There are practical limitations on most rights; those against a Bill of Rights argue that the line-drawing exercise should not be done by judges.
          • Advantage – Avoids disagreement (eg. fundamental rights like free speech)
        • There are differences in countries (eg. in UK and Australia, defamation laws are strong whereas the opposite is true in the US, where there is more of an emphasis on free speech
          • Objections – against power that judges have
        • ‘Judges making things up’ – intended meaning etc.
  • The question of the Bill of Rights is whether you want Parliament or judges to vote on what rights exist.
    • ‘Implied rights’ from Constitution should refer to intended meaning, though sometimes implied rights, JA says, are not derived from the actual intended meaning of the documents.
  • An advantage of a BOR then is that it clearly articulates a list of particular rights
    • Bill of Rights changes certain things in the law: criminal procedure rules
      • More generosity to potential criminals
        • Affects criminal procedure
    • Cannot admit evidence such as confessions, DNA results that (almost) conclusively proves that the dude is guilty
  • Tends to create litigation
    • Rule that you cannot sue solely on a breach of the bill of rights

Richard Posner

Anti-Bill of Rights

  • Whether a Bill of Rights is good is really an empirical call
  • Having a Bill of Rights affects your legislature (eg. US governments pass anti-flag burning laws because they know that it is almost certain that the Supreme Court will strike it down).
    • The legislature can then become irresponsible with the Bill of Rights
  • Bill of rights are also vague and there is uncertainty about what certain rights mean in different contexts

Pro-Bill of Rights

  • Bill of Rights are a check on power
  • ‘It’s a toss-up’, no clear decision


  • Just listed stuff Tushnet mentioned. You'd probably be better off checking this page out!