It
earlier judicial
judicial decisions. Out of such ambiguities are
presented choices which simply will not go away.
doubtless So in the legal systems of every linguistic
tradition. But it is magnified in any system of law
operating, even in part, through the medium of the English
language.
That
There is a growing recognition amongst judges that they
have such choices. The old notion of absolute and complete legalism27
is increasingly giving way to the recognition of
the necessity and obligation of judicial choice.
obligation is enhanced when it is the function of the judge
to give meaning to the necessarily sparse language of a Bill
of Rights, constitutional or otherwise. Such language,
expressed in terms of great generality, will impose
particular obligations to which I will shortly come.
For present purposes my point is that the obligation of
choice necessitates criteria for choice. It does so whether
the criteria are expressly stated in the instrument or not.
It does so whether they are recognised by the decision-maker
or not.
Its
constitution,
Australia is a federal country.
originally enacted as an imperial statute, but based upon a
referendum of the people in the Australian colonies, contains a number of guaranteed rights.28
that there is no bill of
constitution, and this has a
Although it is often said
rights in the Australian
superficial accuracy, the
Australian courts have increasingly spelt out of the general
language of the constitution (and the assumptions which that
language enshrines) guarantees of basic rights which almost
certainly were not in the mind of the Founders when the words
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