Magna carta, common law values and the constitution



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44.

As mentioned, the Constitution does not contain a Bill of Rights or any express reference to guarantees, for example, of due process or of personal liberty, which might have placed limitations on legislatures and might be thought to present an apparent problem with the implication of such guarantees45. However, the link made by Dixon J in the Communist Party Case between Ch III and the unexpressed assumption of the rule of law has been taken up in different contexts46.

Speaking generally, in the context of the judicial power of the Commonwealth, the separation of judicial power from other government functions has been described as advancing "two constitutional objectives: the guarantee of liberty and, to that end, the independence of Ch III judges"47. It has sometimes been said these developments "constitutionalise" principles of common law predating the Constitution.

One of the most easily recognisable aspects of these developments is the emergence and development of the Kable principle. Chapter III of the Constitution assumes that there are both Commonwealth and State sources of judicial power. In Kable




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