Courts, Constitutions and Fundamental Rights*
SIR ANTHONY MASON
The role of the courts in the framework of government--the way in which they administer the rule of law--is in the process of evolutionary change, both in the United Kingdom and Australia. The forces driving that process of evolutionary change in both countries are broadly similar, though in the United Kingdom they are directly related to its membership of the European Community and its subjection to the legal regime which that membership entails.
The courts in the United Kingdom and Australia have not advanced as far along this path of evolutionary change as have the courts in other modern democracies. The superficial explanation for that phenomenon is that neither country has adopted a Bill of Rights either entrenched in a Constitution or statute-based. Lying behind that explanation are a belief in majoritarian democracy and Professor A.V. Dicey's legal theory of Parliamentary sovereignty which may well have had a greater and longer lasting impact in Australia and the United Kingdom than they have had elsewhere.
The theory of Parliamentary sovereignty is often associated with the notion of majoritarian government. Parliamentary sovereignty, like majoritarian government, makes no allowance for the apprehensions of the tyranny of the majority and the need to guard against it by entrenching guarantees of fundamental rights. Indeed, the theory is antagonistic to the existence of such guarantees because they would, and do, operate as a limitation on the legislative power of Parliament. And that is why Professor Dicey placed such emphasis onœthe common law protection of individual rights. And it is why Sir Robin Cooke, the President of the New Zealand Court of Appeal, has suggested that some common law rights 'may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them',1 a view which Lord Reid had firmly rejected in 1974.2____________________