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A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?

Published online by Cambridge University Press:  24 January 2025

Rosalind Dixon
Rosalind Dixon*
Affiliation:
University of Chicago Law School
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Extract

Most commentators agree that, if Australia is to adopt a charter of rights, such a charter should so far as possible involve a ‘minimalist’ form of constitutional change. It should both be enacted by ordinary statute and seek to preserve broad scope for the Commonwealth Parliament, in appropriate cases, to override the interpretation of non-Constitutional rights by the High Court. When it comes to questions of form and enforceability, the thinking is that it should be modelled on either the Human Rights Act 1998 (UK) c 42 ('UK HRA’), and the largely equivalent state statutory charters in the ACT and Victoria, or on the Canadian Bill of Rights, SC 1960, c 44 ('CBOR’).

Not only would a statutory charter of this kind be easier to adopt than a more entrenched model of charter, such as a charter modelled on the US Bill of Rights, the Canadian Charter of Rights and Freedoms 1982 (the second and later of Canada's two operative human rights charters) ('Canadian Charter’), or Constitution of the Republic of South Africa 1996.

Type
Research Article
Information
Federal Law Review , Volume 37 , Issue 3 , September 2009 , pp. 335 - 362
Copyright
Copyright © 2009 The Australian National University

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Footnotes

The author wishes to thank Peter Cane, Harry Dixon, Marion Dixon, Carolyn Evans, Richard Holden, Andrew Lynch, Ed Santow, Cheryl Saunders and Adrienne Stone for helpful comments and suggestions on earlier drafts of this article, and the issues raised by it. Thanks are also due to Jennifer Dougherty and Emily Tancer for excellent research assistance.

References

1 For the idea of minimalism in constitutional law, particularly as applied to the process of judicial review, see Cass, R Sunstein, One Case At A Time: Judicial Minimalism on the Supreme Court (1999)Google Scholar.

2 See Human Rights Act 2004 (ACT) ('ACT HRA’); Victorian Charter of Rights and Responsibilities 2006 (Vic) ('Victorian Charter’). For relevant differences, see, eg, Carolyn Evans, ‘British Influences on Australian Human Rights Acts’ (Paper presented at the Faculty of Law, Oxford University, 24 April 2007); Simon Evans, ‘The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria,’ Paper presented at the Australian Bills of Rights: The ACT and Beyond Conference, Canberra, 21 June 2006. In many ways, the Bill of Rights 1990 (NZ) is also another model in this same broad category, but as a potential precedent raises certain additional complications. One complication is that it contains no express power to make a declaration of incompatibility or inconsistency, and therefore to the extent such a power is judged desirable even on minimalist grounds, raises unnecessary complications. Another difficulty is that it has been interpreted by the New Zealand Court of Appeal to imply certain fairly maximalist remedies, including a right to damages for the breach of the Act: see, eg, Simpson v A-G [1994] 3 NZLR 667 ('Baigent's Case’). For some, this raises concerns about the stability of weak-form judicial review: see, eg, James, Allan, ‘Take Heed Australia — A Statutory Bill of Rights and Its Inflationary Effect‘( 2001) 6 Deakin Law Review 322, 333Google Scholar (discussing the emotive power of ‘rights talk’ referencing a bill of rights); Grant, Huscroft, ‘Protecting Rights and Parliamentary Sovereignty: New Zealand's Experience with a Charter Inspired, Statutory Bill of Rights’ (2002) 21 Windsor Yearbook of Access to Justice 111, 129Google Scholar (arguing that increased rights-consciousness produces a strong gravitational pull away from weak-form judicial review); Mark, Tushnet, ‘Judicial Activism or Restraint in a Section 33 World’ (2003) 53 University of Toronto Law Journal 89, 89–90Google Scholar. However, it may also reflect more specific problems associated with the design of the NZBOR, and the approach of some members of the New Zealand Court of Appeal in the early years of the operation of the NZBOR: see, eg, Andrew, S Butler, ‘Declaration of Incompatibility or Interpretation Consistent with Human Rights in New Zealand’ (2001) Public Law 28Google Scholar (on design); Anna Adams, ‘Competing Conceptions of the Constitution: The New Zealand Bill of Rights Act 1990 and the Cooke Court of Appeal’ (1996) New Zealand Law Review 368 (summarizing the approach of Lord Cooke and other members of the Cooke court to the NZBOR).

3 It should, of course, be noted that the degree to which the US leaves scope for democratic dialogue between the Supreme Court and the elected branches, either via United States Constitution art V, § 5 of the Fourteenth Amendment or otherwise, is itself a contested question.

4 When it comes to the substantive rights the two charters protect, the CBOR is generally agreed to be much narrower and to that extent more minimalist — but potentially too much so. See Walter, S Tarnopolsky, ‘The Historical and Constitutional Context of the Proposed Canadian Charter of Rights and Freedoms’ (1981) 44(3) Law and Contemporary Problems 169Google Scholar. See also Part III below.

5 On the distinction between strong — versus weak-forms of review, see Mark, Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008)Google Scholar.

6 See, eg, Hilary, Charlesworth, ‘Who Wins under a Bill of Rights?’ (2006) 25 University of Queensland Law Journal 39, 50Google Scholar (arguing that, whatever the merits of democratic concerns about judicial review in the name of human rights, such concerns are directly answered by such a power); Geoffery Robertson, The Statute of Liberty: How Australians Can Take Back their Rights (2009) 47-48 (arguing for such a model as representing a true ‘half-way’ house model); George, Williams, ‘The Victorian Charter of Human Rights and Responsibilities: Origins and Scope’ (2006) 30 Melbourne University Law Review 880Google Scholar.

7 See National Human Rights Consultation Committee, National Human Rights Consultation Report (2009) xxix-xxxviiiGoogle Scholar.

8 The concept of dialogue is itself a potentially contested one which merits careful treatment. See Rosalind, Dixon, Designing Constitutional Dialogue: Bills of Rights & The New Commonwealth Constitutionalism (SJD Thesis, Harvard University, 2008)Google Scholar; Leighton, McDonald, ‘Rights, “Dialogue” and Democratic Objections to Judicial Review’ (2004) 32 Federal Law Review 1, 26–28Google Scholar; Tom, Campbell, ‘Does Anyone Win Under a Bill of Rights? A Response to Hilary Charlesworth's “Who Wins under a Bill of Rights?“’ (2006) 25 University of Queensland Law Journal 55, 59Google Scholar; Joo-Cheong, Tham and Kenneth, D Ewing, ‘Limitations of a Charter of Rights in the Age of Counter-Terrorism’ (2007) 31 Melbourne University Law Review 462, 470–73Google Scholar; Rosalind, Dixon ‘The Supreme Court of Canada, Charter Dialogue & Deference’ 47 Osgoode Hall Law Journal (forthcoming, 2009)Google Scholar ('Charter Dialogue’). For scepticism about the possibility of such dialogue, see, eg, Allan, above n 2; Grant, Huscroft, ‘Rationalizing Judicial Power: The Mischief of Dialogue Theory’ in James, B Kelly and Christopher, P Manfredi (eds), Contested Constitutionalism: Reflections on the Charter of Rights and Freedoms (2009)Google Scholar; Andrew, Petter, ‘Taking Dialogue Theory Much Too Seriously (or Perhaps Charter Dialogue Isn't Such a Good Thing After All)’ (2007) 45 Osgoode Hall Law Journal 147Google Scholar.

9 On the concept of second look cases, see Peter, W Hogg and Allison, A Bushell, ‘The Charter Dialogue Between Courts and Legislatures (Or Perhaps The Charter of Rights Isn't Such A Bad Thing After All)’ (1997) 35 Osgoode Hall Law Journal 75Google Scholar.

10 See Stephen Gageler, ‘In the Matter of Constitutional Issues Concerning a Charter of Rights,’ SG No. 40 of 2009; Stephen Gageler, ‘In the Matter of Constitutional Issues Concerning a Charter of Rights — Supplementary Opinion’ SG No. 68 of 2009.

11 For criticism of the UK HRA on these grounds, see, eg, Tom, Campbell, ‘Incorporation through Interpretation’ in Adam, Tomkins et al (eds), Skeptical Essays on Human Rights (2001) 85Google Scholar; Aileen, Kavanagh, Constitutional Review under the UK Human Rights Act (2009)Google Scholar.

12 Only one statute was actually invalidated by the SCC under the CBOR. See below n 108.

13 See, eg, Potter v Minahan, (1908) 7 CLR 277, 304; Coco v The Queen (1994) 179 CLR 427; Al-Kateb v Godwin (2004) 219 CLR 562, 577 (Gleeson CJ) ('Al-Kateb’).

14 See Polites v Commonwealth (1945) 70 CLR 60, 68–69, 77, 80–8 (regarding international law generally); Kartinyeri v The Commonwealth (1998) 195 CLR 337, 384 (Gummow and Hayne JJ). This, though, is a more contested principle of statutory interpretation: see eg Al-Kateb (2004) 219 CLR 562, 662 (Heydon J). But see Al-Kateb (2004) 219 CLR 562, 590 (McHugh J) (arguing that the principle is firmly established).

15 See, eg, Dietrich v The Queen (1992) 177 CLR 292; Mabo v Queensland (No 2) (1992) 175 CLR 1, 42 (Brennan CJ).

16 See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (freedom of political communication); Roach v Electoral Commissioner (2007) 233 CLR 162 (prohibition against arbitrary restrictions on the franchise, or basic political communication); Constitution ss 51(xxxi), 75(v), 80, 116. For discussion of the significance of s 75(v) in this context, see Pamela, Tate, ‘Protecting Human Rights in a Federation’ (2007) 33 Monash University Law Review 220, 223–24Google Scholar; for debate about the significance of s 51(xxxi) as a true rights guarantee, see Rosalind, Dixon, ‘Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution’ (2005) 27 Sydney Law Review 639Google Scholar.

17 As a formal matter, the doctrine of parliamentary sovereignty means that Parliament is, of course, superior to the Court in this context: see generally Julie, Taylor, ‘Human Rights Protection in Australia: Interpretation Provisions and Parliamentary Supremacy’ (2004) 32 Federal Law Review 57Google Scholar.

18 Human Rights Act 1998 (UK) c 42, s 2.

19 Section 14 of the HRA also expands this power of suspension by providing that the executive (ie the Secretary of State) retains power under the Act, not just the Convention, to suspend the operation of Convention rights for a five-year renewable period. See Human Rights Act 1998 (UK) c 42, ss 14, 16.

20 R v Drybones [1970] SCR 282.

21 Ibid.

22 Human Rights Act 1998 (UK) c 42, s 3.

23 Human Rights Act 1998 (UK) c 42, s 4.

24 Human Rights Act 1998 (UK) c 42, s 4(6).

25 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9.

26 Tate, above n 16, 234.

27 Jeremy, Waldron, ‘Some Models of Dialogue Between Judges and Legislators’ in Grant, Huscroft and Ian, Brodie (eds), Constitutionalism in the Charter Era (2004) 7Google Scholar. ('Models’)

28 Ibid.

29 On the misrepresentation involved, see ibid 37.

30 For the contrary argument, that a formal power of legislative override should be understood to exhaust the scope for Parliamentary dialogue involving actual interpretive disagreement, see, eg, Peter, Hogg, Alison, Bushell Thornton and Wade, Wright, ‘Charter Dialogue Revisited — Or “Much Ado About Metaphors“’ (2007) 45 Osgoode Hall Journal 47–8Google Scholar.

31 For similar arguments, though from somewhat different perspectives in relation to the interpretation of Australian state, UK and NZ rights charters, see, eg, James, Allan, ‘The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism’ (2006) 30 Melbourne University Law Review 906Google Scholar; Butler, above n 2, 35; Campbell above n 11, 87; C A, Gearty, ‘Reconciling Parliamentary Democracy and Human Rights’ (2002) 118 Law Quarterly Review 248, 254Google Scholar; Paul, Rishworth, ‘Common Law Rights and Navigation Lights: Judicial Review and the New Zealand Bill of Rights’ (2004) 15 Public Law Review 103, 116Google Scholar.

32 In this sense, I do not share the view of many commentators that judicial rather than legislative relief is an inherently necessary condition for the effective protection of individual rights.

33 [2004] 2 AC 557.

34 Ibid 572 (Lord Nicholls); 577 (Lord Steyn); 604 (Lord Rodger); 609 (Baroness Hale).

35 Charlesworth, above n 6, 49.

36 [2003] 2 AC 467.

37 Gender Recognition Act 2004 (UK) c 7, s 11, sch 4.

38 Gender Recognition Act 2004 (UK) c 7, s 5, s 11, sch 4.

39 (2004) 219 CLR 562.

40 David Marr, ‘Liberty is Left in Shaky Hands When the High Court No Longer Defends It’ Sydney Morning Herald (Sydney), 31 March 2005. Note that there is in fact some doubt whether this course was truly open to the Minister, on the interpretation given to s 196 of the Migration Act 1958 (UK) in Al-Kateb. No challenge was brought to the decision, however.

41 Ben, Juratowitch, Retroactivity and the Common Law (2008)Google Scholar.

42 [2004] 2 AC 557, 560-1.

43 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 9 ETS, art 1 (entered into force 18 May 1954).

44 Carbonara & Ventura v Italy (2000) VI Eur Court HR 91, [64].

45 Soering v UK (1989) 11 EHRR 439, [89]. See also Carbonara & Ventura v Italy (2000) VI Eur Court HR 91 (articulating relevant rule of law requirements); Sporrong & Lonnroth v Sweden (1982) 52 Eur Court HR (ser A) 9 (developing the fair balance test); the discussion in Tom, Allen, ‘Compensation for Property Under the European Convention on Human Rights’ (2007) 28 Michigan Journal of International Law 287Google Scholar.

46 This is likely why the remedial legislation introduced even before the decision of the House of Lords in Ghaidan purported to operate only prospectively: see Civil Partnerships Act 2004 (UK) c 3, s 81 sch 8.

47 For an exploration and critique of the potential inconsistency between a bar on legislatively-created, as opposed to judicially-created, retroactivity, see Juratowitch, above n 41; David, Mead, ‘Rights, Relationships and Retrospectivity: The Impact of Convention Rights on Pre-Existing Private Relationships Following Wilson and Ghaidan’ (2005) Public Law 459Google Scholar.

48 See discussion in R v A [2002] 1 AC 45, 59.

49 Cf Jennifer, Temkin, ‘Sexual History Evidence — Beware the Backlash’ (2003) Criminal Law Review 217, 222Google Scholar ('It was the failure of discretionary regimes to staunch the flow of sexual history evidence which prompted the enactment of s 41’).

50 R v A [2002] 1 AC 45, 68.

51 Ibid.

52 See Peter, Mirfield, ‘Human Wrongs’ (2002) 118 Law Quarterly Review 20, 23Google Scholar; Jennifer Temkin, above n 49, 240.

53 See Frank, Easterbrook, ‘Foreword: The Court and the Economic System’ (1984) 98 Harvard Law Review 4Google Scholar; cf Carolyn Evans and Simon Evans, Australian Bills of Rights: The Law of the Victorian Charter and the ACT Human Rights Act (2008).

54 Easterbrook, above n 53; cf Carolyn Evans and Simon Evans, above n 53.

55 This, at least, was the position at the time of R v A, and prior to the enactment of the Sexual Offences Act 2003 (UK) c 42: see R v Millberry [2002] EWCA Crim 2891.

56 Any attempt directly to reverse the result as it applied only to A would very likely be constitutionally prohibited, even in the UK, by rule of law principles.

57 See, eg, Peck v Jenness, 48 US 612, 623 (1849) ('A legal right without a remedy would be an anomaly in the law’).

58 On the potential relevance of psychological pressures of this kind on judicial behaviour, see, eg, Steven, L Winter, A Clearing in the Forest: Life, Law, and Mind (2003)Google Scholar.

59 See Dietrich v The Queen (1992) 177 CLR 292.

60 See, eg, R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837, 858 (Steyn LJ); 863 (Buxton LJ).

61 See, eg, R v Holding [2005] 1 WLR 1040 (reading ‘out’ the word or from the provisions of s 75(1) of Representation of the People Act 1983 (UK) c 2, stating that ‘no expenses shall…be incurred’ unless those expenses relate to presenting to the electors a candidate or his views, and to certain forms of broadcasting or other communication, or do not exceed a prescribed limit, and therefore the relevant provision as largely inapplicable to Holding's conduct); R(O) v. Harrow Crown Court [2006] 3 WLR 195, 202 (reading s 25(1) of the Bail Act 1976 (UK) c 63, providing that where a person is charged with certain categories of offense, that person should ‘be granted bail…only if the court or,…the constable…is satisfied that there are exceptional circumstances which justify it', as imposing a merely evidentiary burden on an accused to show circumstances justifying release on bail, which the prosecution was then required to rebut).

62 R (H) v London North and East Region Mental Health Review Tribunal [2002] QB 1 (administrative detention of mental health patients); R(D) v Secretary of State for the Home Department [2003] 1 WLR 1315 (parole board discretion in respect of mental health patients); R (on the application of M) v Secretary of State for Health [2003] 1 WLR 1318 (representation of persons challenging administrative detention, in mental health context); Blood and Tarbuck v Secretary of State for Health (Unreported, High Court, Sullivan J, 2002 ) (registration of parentage); Bellinger [2003] 2 AC 467 (validity of marriage); R (Wilkinson) v Commissioners of Inland Revenue [2003] 1 WLR 2683 (tax deduction); International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 (customs-related civil penalty scheme); R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 (parole board discretion); A v Secretary of State for the Home Department [2004] UKHL 56 (Unreported, Lord Bingham, Lord Nicholls, Lord Hoffmann, Lord Hope, Lord Scott, Lord Rodger, Lord Walker, Lord Hale and Lord Carswell, 16 December 2004) (administrative detention of non-citizens deemed a national security threat).

63 [2002] NIQB 58.

64 Ibid (hearing appeal against conviction for buggery). The High Court in that case not only made a declaration of incompatibility; it also granted an order for certiorari quashing the effect of the appellant's conviction, in a way which approximated an exercise of the stronger remedial power to issue a declaration of inconsistency.

65 R v Offen [2001] 1 WLR 253 (criminal sentencing); R v A [2002] 1 AC 45 (admissibility of evidence in criminal trial); R v Lambert [2001] 3 WLR 206 (burden of proof in criminal trial); A-G's Reference No 4 of 2002 [2004] UKHL 43 (Unreported, Lord Bingham, Lord Steyn, Lord Phillips, Lord Rodger and Lord Carswell, 14 October 2004) (scope of terrorism-related crimes).

66 Cachia v Faluyi [2001] 1 WLR 1966 (hurdles to civil action under Fatal Accidents Act); R v Carass [2002] 1 WLR 1714 (burden of proof in bankruptcy proceedings); Ghaidan [2004] 2 AC 557 (residential tenancy dispute).

67 R (Sim) v Parole Board [2003] 2 WLR 1374 (power of parole board); R (Middleton) v Her Majesty's Coroner for the Western District of Somerset [2004] 2 WLR 800 (scope of coronial inquest).

68 This cut-off is designed to prevent the over-counting of remedies issued by lower courts subsequently overturned on appeal.

69 See R v Holding [2005] 1 WLR 1040; R (O) v Harrow Crown Court [2006] 3 WLR 195; R (Hammond) v Secretary of State for the Home Department [2006] 1 AC 603.

70 See Beaulane Properties Ltd v Palmer [2006] Ch 79 (scope of doctrine of adverse possession); Culnane v Morris [2006] 2 All ER 149 (defence to defamation action).

71 Two concerned issues relating to immigration, specifically the rights of citizens with non-citizen family members to gain priority access to public housing and the right of persons subject to immigration control to marry: see R (Morris) v Westminster City Council [2006] 1 WLR 505 (rights of citizens with non-citizen dependent children); R (Gabaj) v First Secretary of State (Unreported, Administrative Court, 28 March 2006) (rights of citizens with non-citizen pregnant spouse). One concerned the eligibility for a tax-concession: see R (Hooper) v Secretary of State for Work and Pensions [2003] EWCA Civ 875. A fourth declaration was also issued in respect of rights of access to public housing, but overturned on appeal: see R (Baiai) v Secretary of State for the Home Department [2006] 3 All ER 608; aff'd [2008] All ER (D) 411.

72 R (H) v London North and East Region Mental Health Review Tribunal [2002] QB 1, 8 (argument by appellant); R v McR [2002] NIQB 58 (seeking declaration of incompatibility, but with effect of declaration of inconsistency or reading down); International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728, 758 (argument by Secretary, not opposed by appellant); R (Wilkinson) v Commissioners of Inland Revenue [2003] 1 WLR 2683, 2687 (argument by appellant); R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837, 849; Bellinger [2003] 2 AC 467, 471; R (Hooper) v Secretary of State for Work and Pensions [2003] 1 WLR 2623 [2]. In R (D) v Secretary of State for the Home Department, [2003] 1 WLR 1315 and R (Morris) v Westminster City Council [2006] 1 WLR 505, while the petitioners sought relief under the UK HRA only in terms of s 4, they also sought more concrete relief under the Mental Health Act 1983 (UK) c 20 and Local Government Act 2000 (UK) c 22, respectively. For cases in which individuals sought only to obtain a remedy purely in terms of s 4, and no other concrete remedy, see Blood and Tarbuck v Secretary of State for Health, (Unreported, High Court, Sullivan J, 2002); R (on the application of M) v Secretary of State for Health [2003] 1 WLR 1318; A v Secretary of State for the Home Department [2004] UKHL 56 (Unreported, Lord Bingham, Lord Nicholls, Lord Hoffmann, Lord Hope, Lord Scott, Lord Rodger, Lord Walker, Lord Hale and Lord Carswell, 16 December 2004). In each case, this can also be explained by quite specific features of the case, such as the symbolic rather than practical significance of the relief sought (M case), or a strategic concern to avoid making a demand for immediate relief (A v Secretary). Absent publication of the judgment, it is currently impossible to determine the nature of the relief sought in R (Gabaj) v First Secretary of State (Unreported, Administrative Court, 28 March 2006).

73 In the context of s 4, see International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728; A v Secretary of State for the Home Department [2004] UKHL 56 (Unreported, Lord Bingham, Lord Nicholls, Lord Hoffmann, Lord Hope, Lord Scott, Lord Rodger, Lord Walker, Lord Hale and Lord Carswell, 16 December 2004). In the case of s 3, see R v A [2002] 1 AC 45; A-G's Reference No 4 of 2002 [2004] UKHL 43 (Unreported, Lord Bingham, Lord Steyn, Lord Phillips, Lord Rodger and Lord Carswell, 14 October 2004) .

74 (2005) 34 Fam LR 468.

75 Domestic Violence and Protection Orders Act 2001 (ACT) s 51A(3)(b).

76 (2005) 34 Fam LR 468, 485 [98].

77 For discussion of the relevant legislative intent, see SI bhnf (2005) 34 Fam LR 468, 483.

78 Charlesworth, above n 6, 50.

79 Domestic Violence and Protection Order Act 2001 (ACT) s 34 (repealed).

80 See, eg, Schachter v Canada [1992] 2 SCR 679.

81 In the ACT in particular, the interpretive pressure imposed by Ch III may be equally as great because the relevant constraints apply to at least some degree: see SI bhnf (2005) 34 Fam LR 468, 485-6; Stefanie, Wilkins, ‘Constitutional Limits on Bills of Rights Introduced by a State or Territory’ (2007) 35 Federal Law Review 431Google Scholar.

82 Cf Geoffrey, Lindell, ‘The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom?’ (2006) 17 Public Law Review 188, 204–7Google Scholar (arguing in favour of the existence of a ‘matter’ and Commonwealth judicial power in these circumstances); The Hon Michael McHugh, ‘A Human Rights Act, the Courts and The Constitution’ (Speech delivered at the Australian Human Rights Commission, Sydney, 5 March 2009) 20; Dominique, Dalla-Pozza and George, Williams, ‘The Constitutional Validity of Declarations of Incompatibility in Australian Charters of Rights’ (2007) 12 Deakin Law Review 1Google Scholar (arguing that such a scheme would be valid in its entirety); James, Stellios, ‘State/Territory Human Rights Legislation in a Federal Judicial System’ (2008) 19 Public Law Review 52Google Scholar (arguing that, while the better view is such a model is compatible with Ch III, existing High Court precedent raises substantial doubts about the question).

83 Minister for Works (WA) v Civil and Civic Pty Ltd (1967) 116 CLR 273, 277 (Barwick CJ) (holding that ‘[i]t is of the essence of a judgment within the meaning of the Constitution that it is binding upon parties and definitive of legal rights’). See also discussion in Mellifont v A-G (Qld) (1991) 173 CLR 289.

84 Australian Constitution s 71.

85 (1996) 189 CLR 51.

86 See (1996) 189 CLR 51, 106 [22]–[24] (importance of judgement by reference to antecedent obligations) (Gaudron J); 119 [27] (traditional allocation of powers), 122 [33] (actual or potential controversy, existing rights and obligations) (McHugh J); 131 [29]-[30] (traditional allocation of powers, and whether function involves determination of rights and liabilities akin to judgment of guilt) (Gummow J).

87 It will certainly involve the application of existing human rights standards, established by both national and international law. English precedent confirms that it turns on an exercise of discretion by a court: see, eg, Bellinger [2003] 2 AC 467, 482 (Lord Nicholls). The making of a declaration of incompatibility also involves an exercise of power which, while to some degree novel in a judicial setting, has no historical link to the exercise of either legislative or executive power.

88 See Tate, above n 16, 235.

89 See Moonen v Film and Literature Board of Review [2000] 2 NZLR 9.

90 For more concentrated academic criticism, see, eg, Allan, above n 2; Grant Huscroft, ‘Protecting Rights', above n 2, 129

91 See Gageler, ‘In the Matter of Constitutional Issues Concerning a Charter of Rights', above n 10.

92 See, eg, Schachter v Canada, [1992] 2 SCR 679.

93 See, eg, Minister of Works (WA) v Civil and Civic Pty Ltd (1962) 116 CLR 273; Mellifont v A-G (Qld) (1991) 173 CLR 289; cf Gageler, ‘In the Matter of Constitutional Issues Concerning a Charter of Rights', above n 10, [21]. As Gageler notes, this connection could also further be strengthened by requiring under a rights charter that the Attorney-General be joined as a party to proceedings before such a declaration can be made.

94 Cf Stellios, above n 82, 65–8 (expressing doubts on this question).

95 Cf Saffron v R (1953) 88 CLR 523 (Dixon CJ).

96 While in some cases the government may view reading down as preferable to a declaratory remedy, because for example it is less politically salient and therefore costly, in others it may well regard such a remedy as less desirable on account of the fact that it deprives Parliament of the power of non-implementation.

97 See especially McHugh, above n 82; SirGerard, Brennan, ‘Introduction to Human Rights Law: Seminar — Part II’ (2007) 81 Australian Law Journal 248, 258Google Scholar

98 The one potential caveat to this is that the Court might find that, in some cases, reliance on a super-extended power of reading down so as to ‘read in’ curative language into legislation might constitute an exercise of legislative, rather than judicial, power in a manner inconsistent with Ch III: see McHugh, above n 82, 27–30. This, however, seems unlikely, given the degree to which it assumes a realist approach by members of the Court to the process of reading down, and therefore the extent to which it would also likely be correlated with a more realist/functionalist approach to the separation of powers on the part of the Court.

99 For arguments in favour of a more entrenched Canadian-style rights charter in Australia, see, eg, Castan Centre for Human Rights Law, Submission to the National Human Rights Consultation (2009) [3.4], [6.1].

100 This is despite the fact that, for more than 20 years, the CBOR was the only national rights charter in operation in Canada. After the enactment of the Charter, there were comparatively few cases in which the CBOR had the potential to provide broader protection for individual rights than the charter. One potential exception is in the case of the right to property: see, eg, David Johansen, ‘Property Rights and the Constitution’ (Background Paper No BP-268E, Parliamentary Research Branch, Library of Parliament, Canada, 1991).

101 See, eg, Michael, Taggart, ‘Tugging on Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990’ (1998] Public Law 266, 275Google Scholar (suggesting that ‘the dismal performance of the Canadian judiciary with the “ordinary statute” ‘Canadian Bill of Rights 1960’ was common knowledge in New Zealand legal circles and has been viewed there as ‘an object-lesson to avoid repeating’).

102 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) ('ICCPR’).

103 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) ('ICESCR’).

104 For the influence of the ICCPR on the drafting of the Canadian Charter, eg, see John, Claydon, ‘The Use of International Human Rights Law to Interpret Canada's Charter of Rights and Freedoms’ (1987) 2 Connecticut Journal of International Law 349 (1987)Google Scholar; Lorraine, E Weinrib, ‘Canada's Charter: Comparative Influences, International Stature’ in Debra, M McAllister and Adam, M Dodek (eds), The Charter at Twenty: Law and Practice (2002) 495Google Scholar; for the influence of the ICCPR on the drafting of the NZBOR, see Kenneth, J Keith, ‘“Concerning Change“: The Adoption and Implementation of the New Zealand Bill of Rights Act 1990’ (2000) 31 Victoria University of Wellington Law Review 721, 743Google Scholar; Paul, Rishworth, ‘The Inevitability of Judicial Review under “Interpretive” Bills of Rights: Canada's Legacy to New Zealand and Commonwealth Constitutionalism’ (2004) 23 Supreme Court Law Review 233, 255Google Scholar; and for the influence of both the ICCPR and ICESCR on the drafting of the 1993 Constitution of the Republic of South Africa, which carried over to a substantial degree into the 1996 Constitution, see, eg, Anton, J Steenkamp, ‘The South African Constitution of 1993 and the Bill of Rights: An Evaluation in Light of International Human Rights Norms‘(1995) 17 Human Rights Quarterly 101Google Scholar; John, Dugard, ‘International Law and the South African Constitution’ (1997) 6 European Journal of International Law 77Google Scholar.

105 For cases in the United Kingdom prior to the enactment of the HRA relying on transnational rights norms see, eg, Waddington v Miah [1974] 1 WLR 683, 694; Reg v Home Secretary; Ex parte Brind [1991] 1 AC 696, 747-8; in Canada see, eg, Re Mitchell and the Queen, (1983) 42 OR (2d) 481.

106 See, eg, Dietrich v The Queen (1992) 177 CLR 292, 306; Mabo v Queensland (No 2) (1992) 175 CLR 1, 42; Minster for Immigration and Ethnic Affairs v Teoh, (1995) 183 CLR 273. See also Greg, Cranwell, ‘Treaties and Australian Law: Administrative Discretions, Statutes and the Common Law’ (2001) 1 Queenland University of Technology Law and Justice Journal 49Google Scholar.

107 On moral desirability, see, eg, Eric, A Posner and Cass, R Sunstein, ‘The Law of Other States’ (2006) 69 Stanford Law Review 131Google Scholar; Jeremy, Waldron, ‘Foreign Law and the Modern Ius Gentium’ (2005) 119 Harvard Law Review 129Google Scholar; and on pragmatically informed, see, eg, Mark, Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225Google Scholar; Rosalind, Dixon, ‘George Winterton: A Friend to Students and Foreign Law’ in Memorial Volume in Honour of George Winterton (forthcoming 2009)Google Scholar.

108 Cf Re Certification of the Constitution of the Republic of South Africa 1996 (10) BCLR 1253 (CC) [43].

109 For critical commentary on the possibility of dialogue without such deference, see, eg, Waldron, ‘Models', above n 27. See also Allan, above n 2.

110 See Tsvi, Kahana, ‘The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter’ (2001) 44 Canadian Public Administration 255, 256–8Google Scholar.

111 [1988] 2 SCR 712 ('Ford’).

112 See An Act to Amend the Charter of the French Language, SQ 1988, c 54, s 10 ('Bill 178’). Thereafter, the Quebec legislature repealed its own attempt at dialogue by passing legislation designed to give much broader effect to the decision of the SCC in Ford [1988] 2 SCR 712, suggesting that a more narrowly tailored alternative to French-only signage laws would be laws requiring French to be ‘present and predominant’ on all signs. See An Act to Amend the Charter of the French Language, SQ 1993, c 40, s 18 ('Bill 86’).

113 See Kahana, above n 110.

114 Dixon, ‘Charter Dialogue', above n 8.

115 See, eg, R v Darrach [2000] 2 SCR 443; Winko v British Columbia (Forensic Psychiatric Institute) [1999] 2 SCR 625; R v Hall [2002] 3 SCR 309; Canada (AG) v JTI-Macdonald Corp [2007] 2 SCR 610.

116 See Canada Election Act, RSC 1985, c E-2 (as amended by An Act to Amend the Canada Elections Act, SC 1993, c 19, s 23(2)); Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519 ('Sauvé II’).

117 See, eg, Sauvé II [2002] 3 SCR 519, [8]-[9].

118 One way in which the drafters of a rights charter might do this is by making clear that a formal power on the part of Parliament to override a court decision, such as exists under a power of suspension or amendment, is not intended to be exhaustive of the scope Parliament has to modify the court's interpretation of a rights charter.

119 International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 and R (Anderson) v Secretary of State for the Home Department, [2003] 1 AC 837.

120 See, eg, R v McR [2002] NIQB 58; R (on the application of M) v Secretary of State for Health [2003] 1 WLR 1318; Blood and Tarbuck v Secretary of State for Health (Unreported, High Court, Sullivan J, 2002); R (H) v London North and East Region Mental Health Review Tribunal [2002] QB 1. There will, of course, be some cases where a decision not to appeal is strategic, rather than a sincere indication of agreement. The four cases decided at a lower court level in the UK in this period seem far from this kind of case, however. The government ultimately conceded the question of incompatibility in all four cases, either at the initial hearing or afterward.

121 See John Darnton, ‘British Labor Party Sheds Marx for Middle Class', New York Times (New York), 5 October 1994 (detailing future Prime Minister Tony Blair's law and order priorities at the time of assuming leadership of British Labor); Brian Wheeler, The Tony Blair Story (2007) BBC News <http://news.bbc.co.uk/2/hi/6506365.stm> at 13 November 2009 (on the broad priorities of the Blair government, and legislative majority, from 1997-2007). For cases in which such concerns might have been thought to be particularly relevant, see, eg, R v Offen [2001] 1 WLR 253 (narrowing the range of cases in which an automatic life sentence would apply) and R (Sim) v Parole Board [2003] 2 WLR 1374 (narrowing the circumstances in which a prisoner recalled from release on licence could be held in custody, by ‘reading-down’ the apparent presumption in favour of continued detention, so as to create a presumption in favour of release).

122 Dixon, ‘Charter Dialogue', above n 8.

123 Sauvé v Canada (A-G) [1993] 2 SCR 438; Corbiere v Canada (Minister of Indian and Northern Affairs) [1999] 2 SCR 203; Figueroa v Canada (A-G) [2003] 1 SCR 912.

124 R v Vaillancourt [1987] 2 SCR 636; Ford [1988] 2 SCR 712; R v Bain [1991] 1 SCR 91; Committee for the Commonwealth of Canada v Canada [1991] 1 SCR 139; R v Swain [1991] 1 SCR 933; R v Seaboyer [1991] 2 SCR 577; R v Zundel [1992] 2 SCR 731; R v Morales [1992] 3 SCR 711; Sauvé v Canada (A-G) [1993] 2 SCR 438; R v Daviault [1994] 3 SCR 761; RJR-MacDonald Inc v Canada (A-G) [1995] 3 SCR 199; Thomson Newspapers v Canada (A-G) [1998] 1 SCR 877.

125 The exception is Ford [1988] 2 SCR 712.

126 Cf Australian Bill of Rights Bill 1985 (Cth).

127 See, eg, Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466, 478 (Knox CJ and Gavan Duffy J) (holding that direct inconsistency can arise where a Commonwealth law grants a right the exercise of which a state law interferes with); University of Wollongong v Metwally (1984) 158 CLR 447 ('Metwally’) (outlining nature of tests for direct and indirect inconsistency).

128 See Metwally (1984) 158 CLR 447 (holding that Parliament cannot unilaterally define, retrospectively, the scope of even indirect inconsistency).

129 It is worth noting that a Canadian-style charter could potentially achieve the same result by providing for a power of state parliamentary override similar to that found in s 33 of the Canadian Charter of Rights and Freedoms 1982. For such a power to be effective in all cases, however, s 109 of the Constitution would need to be amended, via the referendum process in s 128 of the Constitution, so as to give constitutional precedence to such an override power. While such a process need not lead to a constitutionally entrenched, and therefore maximalist, rights charter at the level of substance (it could, eg, simply involve an attempt to give Parliament power to enact a statutory rights charter that modifies the effect of s 109), from a procedural perspective, it would clearly mean that the enactment of a statutory charter was far from minimalist.