Reconsidering Republican Institutions as Guardians of Rights: Lessons from Australia.

In America, the proposition that rights are best protected by judicial institutions through the operation of judicial review goes virtually unquestioned. With the increasing trend of the judicialization of rights protection around the globe, consideration of other institutional arrangements to secure rights has fallen by the wayside, victim of this growing judicial orthodoxy. However, Australia has never adopted a bill of rights, instead relying largely on their legislature to ensure that individual rights are protected. This reliance on a republican institution to protect rights represents an increasing global rarity, which is unfortunate considering the virtues attendant to republican guardianship of liberty. The Australian Constitutional design offers a republican institution that mixes Westminster responsible government with American-style bicameralism, federalism and separation of powers, allowing the protection of rights through a considered legislative process of scrutiny, publicity and debate. This paper explores the theoretical basis for reliance on republican institutions, as opposed to judicial institutions, as a means of determining and protecting rights, and analyzes and assesses the effectiveness of the Australian model of pre-legislative scrutiny in securing the rights and liberties of its citizens, perhaps inviting a reconsideration of the growing judicial orthodoxy. [ABSTRACT FROM AUTHOR]