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Journal for Peace and Justice Studies

Volume 28, Issue 2, 2018

Binoy Kampmark
Pages 3-26

Australian Legal Exceptionalism and the Bill of Rights

This paper provides a systematic legal and cultural overview of the reasons behind the opposition to an entrenched Bill or Charter of Rights within a special liberal democratic setting. Specific reference is made to Australia given that the country remains the last liberal democracy to resist adopting such a measure of protection for human rights. The paper further argues that Australian opposition to such a bill has assumed the category of exceptionalist rhetoric couched in a very specific socio-legal argot. A bill of rights is not needed, goes this assumption, because institutions are either reasonably functioning or self-correcting of any defects. Any legal changes made, goes such line of reasoning, should be reflected in the supreme will of Parliament, a body both sovereign and sagacious. This paper challenges such readings, suggesting that the argument against any bill of rights in the Australian context involves a core misunderstanding about what such an instrument actually does. It also identifies a fundamental parochialism, notably against the US legal tradition and instances when grave human rights abuses have been sanctioned by Parliament.

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