オーストラリアにおける人権保障 : 成文憲法典で人権保障を規定することの意義・研究序説

This is an introductory study concerning the implications of the human rights `entrenchment' in a written constitution. In Japan, almost all constitutional scholars argue that the provisions of a bill of rights in a written constitution is necessary for the protection of human rights. However, a court's power to declare the statute's constitutionality sometimes does not work even if the legislative branch of government infringes on human rights. In contrast, the Commonwealth of the Australia Constitution Act [the Constitution] has no bill of rights. But various indices, e.g., Andrew Fagan, The Atlas of HUMAN RIGHTS, sometimes indicate that human rights protection in Japan and Australia is equal. In the first section of this article I discuss some reasons. The second section discusses the meanings of "entrenchment" in constitutional context. To discuss this theme, this article compares the human rights protection in Australia and in Japan. This article does not argue whether or not the Commonwealth of Australia or States of Australia should have a bill of rights. In Australia, the Federal Government has no bill of rights in its written constitution, and did not enact a "human rights act". The Constitution has the articles of explicit rights, and the Commonwealth Parliament created the Acts concerning Aboriginal Rights and the Acts concerning the Human Rights Institutions of the Human Rights Conventions of United Nations, which the Commonwealth Government ratified. Many commentators and case laws of the High Court of Australia, which is supreme court of the Commonwealth of Australia, believe the Constitution of the Commonwealth of Australia implies human rights, and the common law rights derived from United Kingdom has vital importance. The argument against a bill of rights is that Australia has no reason to enact a "human rights act", or has no need to alter its Constitution to include a bill of rights, because Australia has a common law tradition and an enactment of this nature will not make a significant difference to the present situation. In contrast, Commonwealth of Nations, especially New Zealand and the United Kingdom have acts concerning human rights. Moreover, in Canada and South Africa, their written constitutions have a bill of rights. To analyse status quo of Australia, we must consider these constitutions of Commonwealth countries. In conclusion, I argue that the human rights education and the consciences of judges have vital importance.

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