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Constitutional JusticeA Liberal Theory of the Rule of Law$
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T. R. S. Allan

Print publication date: 2003

Print ISBN-13: 9780199267880

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199267880.001.0001

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Fundamental Common Law Rights and Equality

Fundamental Common Law Rights and Equality

(p.243) 8 Fundamental Common Law Rights and Equality
Constitutional Justice

T.R.S. Allan

Oxford University Press

In Australia, the State and Commonwealth constitutions may independently reconcile parliamentary sovereignty and the rule of law. A harmony of constitutional doctrine is obtained, without recourse to the common law, by virtue of the legal limitations on the legislative competences of the Australian Parliaments. If it is right to interpret constitutional provisions as well as ordinary statutes in the light of common law values, such as those that inform the ideal of the rule of law, the degree to which the existence of a ‘written’ constitution truly alters the character of legal analysis at the most fundamental level must be questioned. An implied liberty of political communication, that limits legislative power to restrict freedom of speech about public affairs, has been inferred from the principle of ‘representative democracy’ that underlies the constitution. This chapter discusses equality and the separation of judicial power; procedural and ‘substantive’ due process; implied rights, popular sovereignty, and judicial review; and the right to a fair trial in criminal proceedings.

Keywords:   judicial power, common law, equality, due process, judicial review, popular sovereignty, fair trial, criminal proceedings

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