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Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy

Published online by Cambridge University Press:  24 January 2025

Julie Taylor*
Affiliation:
University of Western Australia

Extract

In Ghaidan v Mendoza, the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights. The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant ‘as his or her wife or husband’, should not be read to exclude same-sex couples. Buxton LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case. Section 2(2) was interpreted as applying to a person living with a tenant ‘as if they were his or her wife or husband’, despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.

Type
Research Article
Copyright
Copyright © 2004 The Australian National University

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Footnotes

The author thanks Jim Thomson, George Winterton, and the anonymous referees for comments on earlier drafts.

References

1 [2002] 4 All ER 1162.

2 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953). See Nicholas Bamforth, 'A Constitutional Basis for Anti-Discrimination Protection?' (2003) 119 Law Quarterly Review 215, 218. Bamforth notes four limitations on the 'interpretative obligation' raised in this case.

3 [2002] 4 All ER 1162, 1179 [17] (Buxton LJ). Keene LJ gave a concurring judgment: at 1175-6 [37]-[45]; Kennedy LJ agreed with both judgments: at 1176 [46].

4 Ibid 1174 [35] (Buxton LJ) (emphasis in original).

5 Discrimination against same-sex couples was held to be inconsistent with the Sex Discrimination Act in different circumstances: see McBain v Victoria (2000) 99 FCR 116 (Sundberg J). The High Court upheld the decision but did not consider the question of inconsistency: Re McBain; Ex parte Catholic Bishops Conference (2002) 209 CLR 372. For analysis of the McBain litigation, see Kristen Walker, 'The Bishops, The Doctor, His Patient, and the Attorney-General: The Conclusion of the McBain Litigation' (2002) 30 Federal Law Review 507.

6 See, eg, Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 13, arts 2 and 3 (entered into force 3 September 1981) ('CEDAW'); European Convention on Human Rights, art 14.

7 Including the referenda of 1999, only 8 of the 44 proposals, on 19 referendum days, have passed: Blackshield, Tony and Williams, George, Australian Constitutional Law and Theory: Commentary and Materials (3rd ed, 2002) 1301Google Scholar. This includes the proposal rejected in 1988, to extend to the States rights already protected against the Commonwealth in the Commonwealth Constitution (trial by jury, freedom of religion, and the requirement of just compensation for expropriated property): Ferguson, Gerry, 'The Impact of an Entrenched Bill of Rights: The Canadian Experience' (1990) 16 Monash University Law Review 211, 216Google Scholar. Nationally, 30.33 per cent of voters favoured this proposal, while 68.19 per cent voted against, the lowest 'Yes' vote ever recorded in Australia: George Williams,'Legislating for a Bill of Rights Now' (Paper presented at the Department of the Senate Occasional Lecture Series, Canberra, 17 March 2000) 29.

8 Wait, >Michael, 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution Revisited' (2001) 29 Federal Law Review 57, 60CrossRefGoogle Scholar; Blackshield, Tony Williams, George, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998) 131Google Scholar; Anthony Mason, Sir, 'The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience' (1986) 16 Federal Law Review 1, 11CrossRefGoogle Scholar; Smallbone, DA, 'Recent Suggestions of an Implied “Bill of Rights” in the Constitution: Considered as Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal Law Review 254, 254-5Google Scholar.

9 (1996) 189 CLR 51, 74 (footnotes omitted), see generally 71-6.

10 (1998) 195 CLR 337, 355.

11 Brennan CJ and McHugh J drew support from quotations from several famous exponents of the traditional parliamentary sovereignty doctrine in the UK, eg, Coke, Edward, Institutes of the Laws of England (1797) vol 4, 36Google Scholar: ibid 355; Blackstone's Commentaries (9th ed, 1783) Book 1, 160 and 186: ibid 355; Anson, Sir William, The Law and Custom of the Constitution (1909) vol 1, 7: ibid 357Google Scholar.

12 See Mark Walters, D, 'St German on Reason and Parliamentary Sovereignty' (2003) 62 Cambridge Law Journal 335, especially 367-8.CrossRefGoogle Scholar The author distinguishes 'statutory omnicompetence' (parliamentary power over all subject matters, including the 'supremacy' of Parliament over the King's prerogative powers) from 'statutory or legal omnipotence' (power not only to legislate on all subject matters, but also to legislate free of any legal limitations setting moral or other minimum standards for the content oflegislation). Parliamentary sovereignty in its traditional 'Diceyan' sense involves the assertion of legal omnipotence; parliamentary supremacy or omnicompetence does not.

13 See generally Goldsworthy, Jeffrey, The Sovereignty of Parliament: History and Philosophy (1999)Google Scholar. For a critical review, see Douglas E Edlin, 'Rule Britannia' (2002) 52 University of Toronto Law Journal 313. See also Paul Craig,'Sovereignty of the United Kingdom Parliament after Factortame' (1991) 11 Yearbook of European Law 221,222-40; Nicholas Barber, 'Sovereignty Re-examined: The Courts, Parliament and Statutes' (2000) 20 Oxford Journal of Legal Studies 131, 131-42; Douglas W Vick, 'The Human Rights Act and the British Constitution' (2002) 37 Texas International Law Journal 329, 335-6 and footnotes for references describing opposing views.

14 Dicey, AV, An Introduction to the Study of the Law of the Constitution (10th ed,1959) 39-40Google Scholar. Austin was also a strong advocate: John Austin, The Province of Jurisprudence Determined (1954) lecture IV. See Raz, Joseph, The Conceptof a Legal System (2nd ed, 1980) chs 1 and 2CrossRefGoogle Scholar.

15 HWR Wade, 'The Basis of Legal Sovereignty' [1955] Cambridge Law Journal 172, 174. In relation to parliamentary sovereignty, see generally RFV Heuston, Essays in Constitutional Law (2nd ed, 1964) ch 1; JDB Mitchell, Constitutional Law (2nd ed, 1968) ch 4; Geoffrey Marshall, Constitutional Theory (1971), ch 3; Owen Hood Phillips and Paul Jackson, O Hood Phillips and Jackson: Constitutional and Administrative Law (8th ed, 2001) chs 3 and 4. The contemporary relevance of the doctrine might be criticised in light of decisions which have upheld the effectiveness of the European Communities Act 1972 (UK) c 68, s 2(4) and the Human Rights Act 1998 (UK) s 3, eg R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603. See below, from text accompanying n 77.

16 See, eg, Walker, G de Q, 'Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent Fray with Freedom of Religion' (1985) 59 Australian Law Journal 276, 279Google Scholar.

17 Dicey, above n 14, 40.

18 Section 13 was recently discussed in Attorney-General (WA) v Marquet (2003) 202 ALR 233.

19 The Australia Act 1986 (Cth), rather than the UK Act, is determinative in Australia: Attorney-General (WA) v Marquet (2003) 202 ALR 233, 248 [67] (Gleeson CJ, Gummow, Hayne and Heydon JJ), 282 [203] (Kirby J, denying the relevance of the UK Parliament). This is consistent with prior decisions such as Sue v Hill (1999) 199 CLR 462, 487 [48]-[49].

20 In Attorney-General (WA) v Marquet, ibid 251 [80], the majority found it unnecessary to decide whether, separately from and in addition to the provisions of that section, there is some other source for a requirement to comply with the ElectoralDistribution Act 1947 (WA) s 13.

21 Western Australia v Wilsmore [1981] WAR 179. Cited with apparent approval in McGinty v Western Australia (1996) 186 CLR 140, 209 n 342 (Toohey J); without deciding it, Gummow J raised this possibility at 296-7.

22 [1952] 2 SALR 428, 464.

23 [1965] AC 172, 197.

24 Ibid. For a discussion of these possibilities, see Evans, Carolyn, 'Entrenching Constitutional Reform in Australia' (2003) Public Law Review 133Google Scholar, 135-6. For a discussion of the bases for manner and form, see generally Carney, Gerard, 'An Overview of Manner and Form in Australia' (1989) 5 Queensland University of Technology Law Journal 69Google Scholar.

25 This view might require moderation in light of Acts implementing European Community Law. See discussion below from text accompanying n 77.

26 Heuston, above n 15, 6-7. See also Ivor Jennings, Sir, The Law and the Constitution (5th ed,1967) ch 4Google Scholar; Marshall, above n 15, ch 3. Jennings' view was cited, with apparent support, in R v Mercure [1988] 1 SCR 234, 278-9 (La Forest J). A final interpretation of the doctrine provides that parliament's sovereignty is 'self-embracing', that is, parliament can make any law including a law that binds future parliaments. This has not received widespread acceptance. For a discussion, see HLA Hart, The Concept of Law (1961) 145-6. See also Marshall, above n 15, 45-7; George Winterton, 'The British Grundnorm: Parliamentary Supremacy Re-examined' (1976) 92 Law Quarterly Review 591.

27 (1931) 44 CLR 394.

28 This is the case, at least, for entrenchment of laws with respect to the constitution, powers and procedure of Parliament, pursuant to Australia Acts 1986 (Cth and UK) s 6. Bases upon which manner and form provisions might be binding are discussed above, text accompanying nn 19-24.

29 Section 6 is widely viewed as a 're-enactment' or 'preservation' of the Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict c 63, s 5, despite differences in the wording of the two provisions. See Carney, above n 24, 74; D Lumb, Richard, The Constitutions of the Australian States (5th ed, 1991) 117Google Scholar.

30 (2003) 202 ALR 233, 249 [68] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

31 Kartinyeri v Commonwealth (1998) 195 CLR 337, 356 (Brennan CJ and McHugh J). See generally Winterton, George,'Can the Commonwealth Parliament Enact “Manner and Form” Legislation?' (1980) 11 Federal Law Review 167, 191CrossRefGoogle Scholar. But note the Flags Act 1953 (Cth) s 3(2), which contains a manner and form provision requiring a referendum to change the Australian flag.

32 These provisions were noted by Winterton, ibid.

33 For arguments that the Commonwealth Parliament could enact interpretation provisions, see, Winterton, ibid 185; See also Senate Standing Committee on Constitutional and Legal Affairs, Commonwealth Parliament, A Bill of Rights for Australia: Exposure Report for the Consideration of Senators (1985) 57 [4.16].

34 European Communities Act 1972 (UK) s 2(4).

35 Human Rights Act 1998 (UK) s 3(1).

36 Canadian Bill of Rights s 2.

37 Bill of Rights Act 1990 (NZ) s 6.

38 In relation to New Zealand, see, eg, Andrew Butler, 'Strengthening the Bill of Rights' (2000) 31 Victoria University of Wellington Law Review 129, 143; in relation to the UK, see Geoffrey Lindell, 'Invalidity, Disapplication and the Construction of Acts of Parliament: Their Relationship with Parliamentary Sovereignty in the Light of the European Communities Act and the Human Rights Act' (1999) 2 Cambridge Yearbook of European Legal Studies 399.

39 See, eg, Attorney-General (NSW) v Trethowan (1931) 44 CLR 394; [1932] AC 526 (PC).

40 See, eg, R v Mercure [1988] 1 SCR 234, see especially 278-80 (La Forest J).

41 Electoral Act 1956 (NZ) s 189, now Electoral Act 1993 (NZ) s 268, is an example of a manner and form provision in New Zealand, but has not been tested by the courts. There is no provision which entrenches the entrenching provision.

42 The traditional Diceyan approach to manner and form provisions in the UK is that they are not binding. Alternative models of parliamentary sovereignty and parliamentary supremacy are discussed below. The 'self-embracing' theory might bind parliaments to follow manner and form provisions enacted by their predecessors. See above n 26.

43 This was the term used by Evatt J in South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia (1939) 62 CLR 603, 634.

44 The Bill was introduced in the Senate on 21 November 1973: for the first and second reading speeches, see Commonwealth, Parliamentary Debates, Senate, 21 November 1973, 1971–4 (Lionel Murphy, Attorney-General). The bill lapsed with the 1974 double dissolution.

45 The Bill was introduced in the Senate but did not progress beyond its Second Reading: Commonwealth, Parliamentary Debates, Senate, 27 September 2001, 28110-1 (Meg Lees). Clause 9 is also an interpretation provision.

46 The Bill was introduced in the House of Representatives but did not progress beyond its First Reading: see Commonwealth, Parliamentary Debates, House of Representatives, 2 April 2001, 26112-6 (Andrew Theophanous). Clause 9 is also an interpretation provision.

47 Australian Bill of Rights Bill 1985 (Cth) cll 10 and 12 were also interpretation provisions, although in different terms. This Bill was passed by the House of Representatives but withdrawn by the government in the Senate: for the first and second reading speeches, see Commonwealth, Parliamentary Debates, House of Representatives, 9 October 1985, 1705-6 (Lionel Bowen, Attorney General); for thethird reading speech, see 2899. For discussion, see NFK O'Neill, 'The Australian Bill of Rights Bill 1985 and the Supremacy of Parliament' (1986) 60 Australian Law Journal 139.

48 The words 'any force and effect' are similar to Constitution Act 1982, being schedule B to the Canada Act 1982 (UK) c 11, s 52(1) which has been likened in operation to the Canadian Bill of Rights, s 2.

49 The Human Rights Act 2004 (ACT) was notified on 10 March 2004 and will commence on 1 July 2004. For background to the Act, see ACT Bill of Rights Consultative Committee, Legislative Assembly of the Australian Capital Territory, Towards an ACT Human Rights Act (2003); Leighton McDonald, 'New Directions in the Australian Bill of Rights Debate' [2004] Public Law 22.

50 Explanatory Statement, Human Rights Bill 2003 (ACT) 5, available at ACT Legislation Register <http://www.legislation.act.gov.au/es/db_8294/current/pdf/db_8294.pdf> at 12 March 2004.

51 Ibid. In this sense, s 30 of the Human Rights Act 2004 (ACT) is similar to the Bill of Rights Act 1990 (NZ) ss 4 and 6. See below, from text accompanying n 90.

52 (1939) 62 CLR 603 ('South-Eastern Drainage Board').

53 See, eg, Egan v Willis (1998) 195 CLR 424, 493 (Kirby J): 'It is the nature of a federal polity that it constantly renders the organs of government, federal and State, accountable to a constitutional standard.' Similar judicial comments were made by the Canadian Supreme Court in Amax Potash Ltd v Government of Saskatchewan [1977] 2 SCR 576, 590.

54 There have, however, been instances where courts have questioned the legal effect of laws. The dicta of Lord Coke in Bonham's Case (1610) 8 Co Rep 107a; 77 ER 646 is well known. In New Zealand, President Cooke, of the Court of Appeal, suggested that Parliament could not abrogate fundamental common law rights: New Zealand Drivers' Association v New Zealand Road Carriers[1982] 1 NZLR 374, 390; Fraser v State Services Commission [1984] 1 NZLR 116, 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398. See John L Caldwell, 'Judicial Sovereignty – A New View' [1984] New Zealand Law Journal357.

55 For a useful comparison of human rights legislation in these jurisdictions, see Butler, Andrew, 'Judicial Review, Human Rights and Democracy' in Huscroft, Grant and Rishworth, Paul (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 47Google Scholar; ACT Bill of Rights Consultative Committee, above n 49, 44-54.

56 Of course, Commonwealth interpretation provisions would bind State Parliaments because of the Commonwealth Constitution s 109.

57 The Australia Act 1986 (Cth) s 6 (and its predecessor, the Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict c 63, s 5) only binds Parliament in relation to laws respecting the constitution, powers, and procedures of Parliament.

58 [1952] 2 SALR 428, 464.

59 [1965] AC 172, 197. See above, text accompanying nn 19-24.

60 (1939) 62 CLR 603, 625 (Dixon J), 636 (McTiernan J).

61 (1931) 44 CLR 394. In relation to Trethowan, see above, text accompanying n 27.

62 (1939) 62 CLR 603, 634.

63 Ibid 623.

64 The Supreme Court has upheld provincial interpretation provisions in relation to human rights codes in Ford v Quebec[1988] 2 SCR 712; Devine v Quebec [1988] 2 SCR 790. A human rights code containing an interpretation provision was upheld in Scowby v Glendinning [1986] 2 SCR 226, 236, although the Court did not refer to the interpretation provision.

65 See generally Black-Branch, Jonathan L, Rights and Realities: The Judicial Impact of the Canadian Charter of Rights and Freedoms on Education, Case Law and Political Jurisprudence (1997)Google Scholar; Gérald A Beaudoin and Errol Mendes (eds), The Canadian Charter of Rights and Freedoms (3rd ed, 1996).

66 The Bill of Rights was relied upon in circumstances in which the Charter was not considered to apply in Singh v Minister of Employment and Immigration [1985] 1 SCR 177, 224 (Beetz, Estey and McIntyre JJ) and MacBain v Lederman [1985] 1 FC 856 (Court of Appeal).

67 In relation to s 33, see generally Mark Tushnet, 'Judicial Activism or Restraint in a Section 33 World' (2003) 53 University of Toronto Law Journal 89; Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001).

68 R v Drybones [1970] SCR 282, 294 ('Drybones'). See also Attorney-General (Canada) v Lavell [1974] SCR 1349, 1382 (Hall, Spence and Laskin JJ, dissenting; Abbott J concurred with the minority (at 1373)); Canard v Attorney-General (Canada) [1972] 5 WWR 678. It has also been suggested that the Commonwealth Parliament could enact similar provisions: Winterton, above n 31, 190. But contrast Sir Harry Gibbs, 'Eleventh Wilfred Fullagar Memorial Lecture: The Constitutional Protection of Human Rights' (1982) 9 Monash University Law Review 1.

69 [1985] 1 SCR 177 ('Singh').

70 Ibid 220 (Wilson J).

71 Ibid 237 (Beetz J).

72 Ibid 239.

73 Ibid.

74 [1985] 1 FC 856 (Court of Appeal). The view that Drybones need not be confined to provisions enacted after the Canadian Bill of Rights is supported by Joseph Jaconelli, Enacting a Bill of Rights: The Legal Problems (1980) 160-1; FM Auburn, 'Trends in Comparative Constitutional Law' (1972) 35 Modern Law Review 129, 130.

75 These provisions were categorised as 'disapplication clauses' in Lindell, above n 38.

76 These provisions implement the European Convention on Human Rights. Jurisdiction to disapply Acts which are incompatible with European Community law has been upheld by the House of Lords in R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603 ('Factortame'); R v Secretary of State for Employment; Ex parte Equal Opportunities Commission [1995] 1 AC 1. See also Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Contrast the approach of the majority in Blackburn v Attorney-General [1971] 1 WLR 1037, 1041 (but see comments of Lord Denning MR, 1040).

77 Ibid.

78 For example, declarations of incompatibility were made in R(H) v North and East London Mental Health Review Tribunal[2002] QB 1 ('R(H)'); International Transport Roth GmBH v Secretary of State for the Home Department [2003] QB 728 ('International Transport'). Courts have held that a declaration of incompatibility is a measure of last resort, which should be avoided unless it is plainly impossible to do so: see, eg, R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 132 (Lord Hoffmann).

79 See the Human Rights Act 1998 (UK) ss 10-12. In R(H) and International Transport, ibid, the government responded to address the incompatibility. See generally Keir Starmer, 'Two years of the Human Rights Act' [2003] European Human Rights Law Review 14, 20.

80 [2002] 1 AC 45.

81 Ibid 66 [39] (Lord Steyn) (emphasis in original).

82 Ibid 67-8 [44].

83 Ibid 87 [108].

84 See, eg, Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order: Adequacy of Care Plan) [2002] 2 AC 291, 313 [37]-[41] (Lord Nicholls). See also R v Lambert [2001] 2 WLR 211, 219 [16] (Lord Woolf CJ); aff'd [2002] 2 AC 545.

85 R v Lambert [2002] 2 AC 545, 585 [79] (Lord Hope).

86 See, eg, R v DPP; Ex parte Kebilene [2000] 2 AC 326, 380-1 (Lord Hope). See generally Paul Craig, 'The Courts, the Human Rights Act and Judicial Review' (2001) 117 Law Quarterly Review 589; Richard Clayton, 'Judicial Deference and “Democratic Dialogue”: The Legitimacy of Judicial Intervention Under the Human Rights Act 1998' [2004] Public Law 33.

87 [2002] 4 All ER 1162. See above, text accompanying n 1.

88 Ibid 1170 [19]. Keene LJ also stated that the Court was concerned with 'rights of high constitutional importance, where the courts are equipped to arrive at a judgment. It is indeed a classic role of the courts to be concerned with the protection of such minority rights': 1176 [44]).

89 Ibid 1170 [19].

90 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions (SSETR) [2003] 2 AC 295.

91 Butler, above n 38, 135.

92 Ibid 133-6; Joseph, Philip A, 'The New Zealand Bill of Rights Experience' in Alston, Philip (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 283, 299Google Scholar; Allan, James, 'Oh that I Were Made Judge in the Land' (2002) 30 Federal Law Review 561, 563-5CrossRefGoogle Scholar.

93 For Court of Appeal cases involving the Bill of Rights Act, ss 4 and 6, see R v Pora [2001]2 NZLR 37; Moonen v Film and Literature Board of Review [2000] 2 NZLR 9; Simpson v Attorney- General [1994] 3 NZLR 667 ('Baigent's Case'). See generally Grant Huscroft and Paul Rishworth (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (1995); Andrew Butler, 'The Bill of Rights Debate: Why the New Zealand Bill of Rights Act 1990 is a Bad Model for Britain' (1997) 17 Oxford Journal of Legal Studies 323; Janet McLean, 'Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act' [2001] New Zealand Law Review 421.

94 [2001] 2 NZLR 37.

95 For commentary supporting Elias CJ, Tipping and Thomas JJ, see, eg, Daniel Kalderimis and Chapman Tripp, 'R v Pora' [2001] New Zealand Law Journal 369. For criticism of these judges and support for Gault, Keith and McGrath JJ, see Anita Killeen, Richard Ekins and John Ip, 'Undermining the Grundnorm?' [2001] New Zealand Law Journal 299; Allan, above n 92, 561.

96 See, eg, R v Pora [2001] 2 NZLR 37, 50 [49]-[50] (Elias CJ, Tipping J agreeing).

97 Ibid.

98 Ibid 62 [106]–[107] (Keith J, Gault and McGrath JJ agreeing).

99 Wade, HWR, 'Sovereignty – Revolution or Evolution?' (1996) 112 Law Quarterly Review 568, 574Google Scholar.

100 For both sides of the debate, see Goldsworthy, above n 13, 15; John Laws, 'Law and Democracy' [1995] Public Law 72, 88-90; Trevor Allan, 'Parliamentary Sovereignty: Law, Politics, and Revolution' (1997) 113 Law Quarterly Review 443, 445; Trevor Allan, 'Legislative Supremacy and the Rule of Law: Democracy and Constitutionalism' (1985) 44 Cambridge Law Journal 111; Craig, above n 13, 251-3; Lindell, above n 38; Trevor C Hartley, The Foundations of European Community Law (2nd ed, 1988) 240-3; Geoffrey Marshall, 'Parliamentary Sovereignty: The New Horizons' [1997] Public Law 1; Joseph Jaconelli, 'Constitutional Review and Section 2(4) of the European Communities Act 1972' (1979) 28 International and Comparative Law Quarterly 65.

101 Butler, above n 93, 340. For support for this view, see Michael Taggart, 'Tugging on Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990' [1998] Public Law 266, 280. For an alternative, critical view, see Jim Evans, 'Questioning the Dogmas of Realism' [2001] New Zealand Law Review 145, 166; Allan, above n 92.

102 Butler, ibid.

103 Lindell, above n 38, 409.

104 [1985] 2 SCR 150.

105 Ibid 156 (McIntyre J, for the Court).

106 See, eg, Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [30] (Gleeson CJ).

107 Ibid; Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

108 Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733; Ellen Street Estates Ltd v Minister of Health [1934] 1 KB 590.

109 R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991] 1 AC 603.

110 Enid Campbell, 'Comment on State Government Agreements' (1977) 1 Australian Mining and Petroleum Law Journal 53, 54; Carney, above n 24, 72, 75-7; Winterton, above n 31, 186 n 36; Lumb, above n 29, 117-8.

111 At the time, that requirement was contained in the Colonial Laws Validity Act 1865 (Imp). For criticism of the decision on this ground, see West Lakes Ltd v South Australia (1980) 25 SASR 389, 396 (King CJ), 419 (Matheson J); Lumb, ibid. See discussion in Carney, above n 24, 75-7; Winterton, above n 31, 186 n 36. Contrast Commonwealth Aluminium Corporation Limited v Attorney-General [1976] Qd R 231, 237 (Wanstall SPJ), 248 (Hoare J); HP Lee, '"Manner and Form”: An Imbroglio in Victoria' (1992) 15 University of New South Wales Law Journal 516, 529.

112 See Lindell, above n 38, 409.

113 Of course, there are elements of the law-making process that are not democratically elected, eg, the Queen and members of the Senate (appointed pursuant to the Commonwealth Constitution s 15).

114 Lord Irvine of Lairg, 'The Human Rights Act Two Years On: An Analysis' (Lecture delivered at The Inaugural Irvine Human Rights Lecture, Durham, 1 November 2002) available at <http://www.lcd.gov.uk/speeches/2002/lc011102.htm> at 11 March 2004. The same balance is referred to in defence of the Bill of Rights 1990 (NZ) in McLean, above n 93, 448.

115 See above, text accompanying nn 80-90, 91-8.

116 See Starmer, above n 79, 15-16, and references cited there.

117 Hogg, Peter, Constitutional Law of Canada (4th ed, 1997) 794Google Scholar.

118 The leading manner and form case is R v Mercure [1988] 1 SCR 234, see especially 278-80 (La Forest J). The majority held the manner and form provision binding, relying on Bribery Commissioner v Ranasinghe [1965] AC 172, 197-8; Attorney-General (NSW) v Trethowan [1932] AC 526 (Privy Council); Harris v Minister for the Interior [1952] 2 SALR 428. The majority did not discuss Drybones.

119 See above, from text accompanying n 68.

120 This view was supported in Winterton, above n 31, 185.

121 In this way, the interpretation provision would have a similar effect for later inconsistent statutes as the Commonwealth Parliament's statutes have for inconsistent State Parliaments' statutes, as a result of the Commonwealth Constitution s 109. In relation to the effect of s 109, see Butler v Attorney-General (Vic) (1961) 106 CLR 268, especially 286 (Windeyer J); Western Australia v Commonwealth (1995) 183 CLR 373, 464-8 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ).

122 But note Gummow J's comments in McGinty v Western Australia (1996) 186 CLR 140, 297.

123 See above, from text accompanying n 31.

124 [1952] 2 SALR 428, 464.

125 [1965] AC 172, 197.

126 See, eg, Cormack v Cope (1974) 131 CLR 432, 452-3 (Barwick CJ, McTiernan J agreeing); Victoria v Commonwealth (1975) 134 CLR 81 ('PMA Case'), 162-4 (Gibbs J).

127 Gummow J expressly left the question open in McGinty v Western Australia (1996) 186 CLR 140, 297.

128 Of course, the Commonwealth Parliament would require a head of power in the Commonwealth Constitution to enact a Bill of Rights. If such a Bill of Rights only protected rights contained in international instruments evidencing 'international concern', the s 51(xxix) external affairs power might provide a basis for legislative power. Alternatively, State Parliaments could use interpretation provisions to protect a Bill of Rights.

129 It is beyond the scope of this article to consider the arguments for and against the enactment of a Bill of Rights. For a summary of arguments on both sides, see, eg, George Williams, Human Rights Under the Australian Constitution (1999); Justice Michael Kirby, A Bill of Rights for Australia: But Do We Need It? (1997) Law and Justice Foundation of NSW <http://www.lawfoundation.net.au/resources/kirby/papers/19971214_austlaw.html> at 9 March 2003; Allan, above n 92, 573-4.

130 This was recognised in relation to the Canadian Charter of Rights and Freedoms in Peter Hogg and Allison Bushell, 'The Charter Dialogue between Courts and Legislatures' (1997) 35 Osgoode Hall Law Journal 75. See also Clayton, above n 86, 33.

131 Justice Ronald Sackville, 'A Bill of Rights: Form and Substance' (2000) 19 Australian Bar Review 101, 106. See also R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffman); apparently approved in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [30] (Gleeson CJ).