Rights Protection and Constitutional Justice: Some Comparative Reflections

Abstract

Many of the symposium's papers rightly focus on the access gates (elements such as standing, costs, amicus curiae) that enable or prevent individuals from litigating, or the process gates (such as the issuance of advisory opinions) that shape the form of justice that may or may not come from courts. This paper takes the liberty of not comparing Australia's access and process gates to those in other countries. Rather, it focuses on the implements available to litigants and judges to promote constitutional justice once access to the judicial system is secured. In this light, accessing constitutional justice concerns more than simply getting into the system. It also concerns what sort of justice litigants may contest and what sort of justice the courts can provide. This varies cross-nationally, based, in part, on how judicial power is allocated and how legal and political rights are protected in the constitutional system. The simple point is that the justice one can access or secure depends to some extent on what is or is not included in the constitutional system.