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JULIE DEBELJAK[*]
[Since the enactment of the Human Rights Act 1998 (UK) c 42, Australia is the only common law jurisdiction without a comprehensive system of legislative or constitutional protection of human rights and fundamental freedoms. As a result, Australia is at risk of legal and philosophical isolation. A reassessment of Australia’s stance on human rights protection is necessary. This reassessment must include a new examination of the link between democracy and human rights. This article focuses on institutional models of human rights promotion and protection that are consistent with Australia’s democratic tradition. It explores modern notions of democracy, and the balance of power between the institutions of government under modern bills of rights. Particular features of modern bills of rights, which institutionalise the debate about human rights between the three arms of government, are discussed. The discussion proceeds in the context of two modern rights protective instruments: the Canadian Charter of Rights and Freedoms and the British Human Rights Act 1998 (UK) c 42. This comparative study aims to be instructive for Australia, particularly as the question of the means of enforcement of a bill of rights has historically been an impediment to the adoption of an Australian Bill of Rights.]
CONTENTS
Australia does not have a comprehensive system of legislative or constitutional protection of human rights or fundamental freedoms. As Charlesworth has noted, the ‘Australian discussion about rights seems locked into a repetitive debate about the legitimacy of judicial scrutiny of governmental action.’[1] It is often asserted that democracy requires parliamentary sovereignty. If the judiciary were empowered to review legislative and executive actions under a comprehensive rights protection instrument, as the argument goes, we would have a system of judicial sovereignty.[2] The judiciary is not elected and so judicial sovereignty is undemocratic. Thus, to preserve this democracy, our elected arms of government retain a monopoly over the scope of the protection of human rights.
This simplistic view of democracy as requiring unfettered parliamentary sovereignty cannot be sustained. Modern models of rights protection give the judiciary some capacity to review the decisions of the elected arms of government against minimum human rights standards. Breaking the parliamentary monopoly on rights protection has not undermined democracy. Rather, self-rule and political equality are enhanced by an inter-institutional debate about democracy and its limits. The essence of enhanced control by citizens over decisions that affect them is self-rule. The crux of overcoming disparities in rights and opportunities is concerned with political equality. This is a debate in which the perspectives of each institution are recognised as valid and constructive.
This article briefly describes the current parliamentary monopoly over rights in Australia. It then explores the potential congruence between democracy and human rights, adopting the principle of ‘democratic inclusion’ as its foundation. The principle of democratic inclusion promotes improved notions of self-rule conditioned by political equality. The judiciary has a legitimate role to play in securing self-rule and political equality, but this should not be to the exclusion of the representative arms of government. The modern rights protection instruments in Canada and Britain,[3] which recognise the need for an inter-institutional debate about democracy and rights, are then assessed against the elements of the principle of democratic inclusion. The article concludes by criticising all governmental monopolies over the democracy and rights debate (whether they be representative or unrepresentative). In a dynamic, pluralistic society, a continuing debate about the directions of society, informed by legislative, executive and judicial perspectives, is the way forward.
Human rights are increasingly part of the common parlance in Australia today — one need look no further than the daily newspaper to find debate and discussion about the state of human rights promotion and protection in Australia. Human rights debates have been sparked by a wide and varied array of issues: the mandatory sentencing laws in the Northern Territory and Western Australia;[4] the continued denial of self-determination for indigenous Australians in a non-discriminatory manner;[5] the diversion of asylum seekers to neighbouring countries following the ‘Tampa crisis’; the mandatory detention of asylum seekers; the debate over the post-September 11 laws designed to deal with modern forms of terrorism and the widening of the powers of the Australian Security Intelligence Organisation;[6] the provision of welfare to the less able; and even the appointment of a religious leader as Governor-General.
Currently in Australia, the elected representatives have a monopoly on deciding the breadth of our human rights. This is due to the lack of constitutionally protected human rights guarantees, the fragile nature of statutory human rights protection, and the domestic impact (or lack thereof) of our international human rights obligations. The elected arms of government are, consequently, subject to very few human rights constraints when enacting and executing laws and implementing policy.
The domestic protection of human rights is a mixture of constitutional and statutory protection.
There are only a handful of expressly guaranteed rights in the Australian Constitution.[7] These express rights have most often been interpreted narrowly by the courts,[8] giving greater freedom to the elected arms of government in their creation and enforcement of Commonwealth law.
The Constitution also contains a handful of implied limits restricting the legislature and executive.[9] The trend of the High Court of Australia to imply ‘rights proper’ into the Constitution appears to have stalled, as evidenced by the denunciation of the implied right to legal equality and curial rejection of the implied right to equality in voting power.[10] Whether or not one is in favour of a restricted reading of our express rights or the practice of implying rights into the Constitution,[11] the fact remains that the Constitution does not provide comprehensive protection of our human rights and fundamental freedoms.[12]
The Commonwealth and States also protect human rights by statute.[13] Although the scope of the rights protected under statute is much greater than that protected under the Constitution, the statutory regimes are subject to limitations. First, the scope of the rights currently protected by statute is much narrower than that protected by international human rights law. Second, there are exemptions from the statutory regimes. Third, the interpretation of human rights legislation by courts and tribunals has been restrictive.[14] Finally, the commissions established under the statutes to promote, protect and implement the human rights are only as efficacious as the elected arms of government allow them to be. Cases in point include: the ongoing and prolonged failure to appoint a permanent Aboriginal and Torres Strait Islander Social Justice Commissioner;[15] the proposed changes to the overall structure of the Human Rights and Equal Opportunity Commission (‘HREOC’), particularly changes to the role of the Aboriginal and Torres Strait Islander Social Justice Commissioner;[16] and the general reduction in resources and staffing to HREOC.[17] The statutory human rights regime is particularly vulnerable to legislative and policy changes. In short, the vulnerability of statutory protection enhances the existing representative monopoly over human rights delimitation and enforcement.
In addition to the domestic human rights regime, Australia has international legal obligations that it must protect and promote. Australia has ratified numerous human rights treaties.[18] Because of our constitutional arrangements, ratification gives rise to international legal obligations only. An international human rights convention does not form part of domestic law until it is incorporated into domestic law by the Parliament.[19] Even under the international human rights system, the elected arms of government retain a monopoly over our human rights obligations.
All of the international human rights treaties create treaty bodies that receive and comment on periodic reports submitted by states parties, and some allow individual complaints to be made.[20] The expert personnel on these treaty bodies may, and often do, have different opinions on the human rights record of a state. It is the manner in which a state responds to the ‘constructive dialogue’ of these bodies that warrants examination. For example, in relation to an urgent reporting request, the Committee on the Elimination of Racial Discrimination (‘CERD’) not only criticised the Australian government for its proposed amendments to the functions of HREOC,[21] but also for its amendments to the Native Title Act 1993 (Cth) and the consultation process preceding the amendments.[22] The Australian government rejected the views formed by the expert treaty body in no uncertain terms:
[CERD] is not a court, and does not give binding decisions or judgments. It provides views and opinions, and it is up to countries to decide whether they agree with those views and how they will respond to them.[23]
The Australian government has shown similar contempt toward communications and decisions made as a result of individual complaints processes. There are numerous outstanding complaints against Australia awaiting determination by the UN Human Rights Committee:[24] 16 complaints are awaiting determination, while the Australian government is preparing its initial response to five other complaints.[25] If the Human Rights Committee finds that Australia has violated its human rights obligations, Australia is nevertheless entitled to ignore the findings of this expert international tribunal. Australia has the sovereign right to disagree with the Human Rights Committee, and continue with whatever law or practice that is found wanting. Indeed, Australia has done so on numerous occasions.[26] The Toonen Case,[27] concerning the right to privacy of homosexuals in Tasmania, is the only Human Rights Committee decision that has been followed by the Australian government and Parliament.[28] The impact of the ratification of the Rome Statute for the International Criminal Court on Australia’s attitude to human rights violations remains to be seen.[29]
With the views of the international community being at best influential, the elected representatives in Australia retain their monopoly on deciding the extent of human rights protection. Australia’s overall deficiency with respect to domestic and international human rights protection will not surprise some. Noberto Bobbio suggests that there is a link between a lack of constitutional guarantees of human rights and a lack of respect for international human rights bodies:
In the world there are states with and without properly functioning ‘constitutional guarantees’. There can be no doubt that it is the citizens in the states without properly functioning constitutional guarantees who most need international protection. Yet these states are the very ones which are least inclined to accept the changes to the international community that would open the way to the establishment of a well-functioning legal system to protect human rights fully.[30]
How can the majoritarian monopoly over the definition of human rights, human rights promotion and human rights protection be broken? How can the elected arms of government be drawn out of the vicissitudes of majoritarian number-crunching, and into a rational dialogue on human rights? How can we ensure that the majority respects the rights of individuals and minorities? One answer to this dilemma is the introduction of a domestic bill of rights enforceable by the judiciary. The introduction of another domestic institutional voice pertaining to human rights issues may be beneficial.
This article will explore the legitimacy of judicial input into the human rights debate. This assessment will occur within the contexts of the comprehensive models of rights protection adopted by Canada and the United Kingdom. Canada has a constitutionally entrenched Canadian Charter of Rights and Freedoms (‘Charter’) and the United Kingdom has recently incorporated, via the Human Rights Act 1998 (UK) c 42 (‘Human Rights Act’), the Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’).[31]
The respective constitutional and statutory models both empower the judiciary to review legislative and executive action taken against minimum standards of human rights. Yet in doing so, neither model transfers to the judiciary a monopoly over the human rights project. Both models allow for a representative response to judicial decisions. Undoubtedly, the Charter and the Human Rights Act challenge traditional conceptions of democracy, the separation of powers and the role of the judiciary. Thus, analysis must begin with a brief discussion of the reconciliation of democracy with rights protection, and the separation of powers. Discussion will then focus on the operation of the Charter and the Human Rights Act, in particular on issues such as the amendment of human rights protections, rights ambiguity, the scope of rights, the remedies available to the rights enforcers, and the responses available to the elected law-makers.
There are many competing ideas about the existence, source and definition of human rights. The least controversial source of human rights is said to be our common humanity. Human rights are human constructs designed to promote and preserve the conditions required for human dignity. ‘[T]he idea of human rights stems from the lessons human beings have learnt to make life livable.’[32] This constructed concept of human rights is acceptable to many schools of thought, including utilitarianism. Utilitarian thought is of particular significance in this debate, as utility is often thought to be the prime motivator in democratic decision-making.[33] Utilitarianism disputes the existence of natural rights, but not positively stated rights: rights can be protected, not because of a belief in some higher-order being or in nature, but simply because they serve a useful, legitimate end in our society.[34]
In the 21st century, it is safe to assert that rights are much more than a whim. As Lord Bingham stated, extra-curially:
I cannot, however, for my part accept that these [ECHR] Articles represent some transient sociological mood, some flavour of the month, the decade, or the half-century. They encapsulate legal, ethical, social, and democratic principles, painfully developed over 2,000 years. The risk that they may come to be regarded as modish or passé is one that may safely be taken.[35]
Human rights were first articulated as such during the Enlightenment period in the 1700s, were further developed after World War II, and continued to expand at the end of the 20th century.[36] The concept of human rights has been extended and refined from the libertarian Enlightenment period, to the community-reinforcing ideals post-World War II, to the mutuality ideals underlying more modern-day documents.[37] That human rights standards are a continuing and evolving debate is indicated by this process of expansion and refinement.
Whichever philosophical justification for human rights is accepted, in pragmatic terms human rights are an accepted notion. Virtually all nation states, in fact, recognise the existence of human rights.[38] Australia, along with most other states, has indicated its view of the worth of human rights by voluntarily entering into international human rights treaties.[39] It is the translation of the international human rights commitments to the domestic polity that is disputed within Australia. It is the political choice of the mode by which human rights are guaranteed[40] that causes controversy.
Traditionally, democracy has been considered to favour majoritarian decision-making: it is understood as popular power — ordinary people govern by the force of numbers. Human rights, in contrast, are traditionally conceived of as recognising and protecting the individual or a minority from the power of the majority. Civil and political rights attempt to guarantee a voice for the unpopular within the popular; a voice for the minority within the majority. Civil and political rights also protect individual human dignity from majority incursion.[41] Human rights, by declaring minimum standards of behaviour, preclude majorities acting in certain ways and pursuing certain objectives. Thus arises the supposed tension between democracy and human rights.
However, there is no necessary tension between democracy and human rights. As Cappelletti suggests:
far from being inherently antidemocratic and antimajoritarian, [rights emerge] as a pivotal instrument for shielding the democratic and majoritarian principles from the risk of corruption. Our democratic ideal ... is not one in which majoritarian will is omnipotent.[42]
Thus, democracy is an important value, but it is not the only important value.[43] Indeed, other values are often included in, and embodied by, human rights instruments. The preamble of the ECHR, for example, expressly links the value of human rights protection and the value of democracy:
those fundamental freedoms which are the foundation of justice and peace in the world ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.[44]
According to this preambulatory statement, both an effective political democracy and human rights observance are required for justice and peace. Although there is no specific elucidation as to their interaction, there is implicit recognition that an effective political democracy and the observance of human rights are complementary, and together they can maintain the fundamental freedoms necessary for justice and peace. This suggests, in turn, that the two ideals can be reconciled. As the preamble illustrates, it is fair to assume that an effective political democracy protects and promotes human rights, and that human rights reinforce an effective political democracy. As Bobbio suggests:
The liberal state and the democratic state are doubly interdependent: if liberalism provides those liberties necessary for the proper exercise of democratic power, democracy guarantees the existence and persistence of fundamental liberties. ... The historical proof of this interdependence is provided by the fact that when both liberal and democratic states fall they fall together.[45]
An exploration of the concept of an ‘effective political democracy’ will be crucial to our understanding of the inter-relationship between human rights and democracy. The European Court of Human Rights, in interpreting the ECHR, has stated that ‘democracy does not simply mean that the views of a majority must always prevail; a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.’[46] Features of a democratic society include ‘pluralism, tolerance and broadmindedness’,[47] and adherence to the rule of law.[48]
The interaction between democracy and human rights as established under the Canadian Charter is also instructive. All rights in the Charter are guaranteed subject to ‘reasonable limits’ that are both ‘prescribed by law’ and ‘justified in a free and democratic society’.[49] Violations of, or limits to, Charter rights can be defended in those terms. In assessing limitations, the Supreme Court of Canada must ‘be guided by the values and principles essential to a free and democratic society.’[50] These values and principles inspired the creation of the guaranteed rights and freedoms. It is thus according to these values and principles that a limitation must be proved to be reasonable and demonstrably justified in a free and democratic society. This is another acknowledgment of the interdependency of, and mutuality between, human rights and democracy. Dickson CJ describes the values and principles associated with a ‘free and democratic’ society to include
respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.[51]
The Charter and the Human Rights Act (taking up the language of the ECHR) clearly recognise the link between democracy and human rights. What are the features of an ‘effective political democracy’[52] which emphasise the congruity between democracy and human rights? Which institution(s) should have a role in enforcing human rights under this effective political democracy? Does the current representative monopoly over human rights protection in Australia withstand scrutiny?
Just as human rights are indeterminate and evolving, so too is democracy: there is no ‘transparent view of the essential meaning of democracy’.[53] Given this indeterminacy, our inquiry should be limited to whether a judicially enforceable instrument for the protection of human rights can be considered part of a true democracy or, at least, not antithetical to democracy.[54] Moreover, the evolutionary nature of democracy warns us against using it to justify the institutions and procedures that have served existing democracies to date.[55] Democracy is not a destination;[56] it is a benchmark from which we aspire to improve. Society must take a provisional approach to democracy.
The ‘principle of democratic inclusion’ best captures the provisional and evolving nature of democracy.[57] The principle of democratic inclusion is concerned with ‘relationships and processes’; it is an ‘agenda of enhancing control by citizens of decision-making which affects them’ and of ‘overcoming disparities in the distribution of citizenship rights and opportunities.’[58] The essence of enhanced control by citizens over decisions that affect them is self-rule. The essence of overcoming disparities in rights and opportunities is concerned with political equality. The principle of democratic inclusion is about processes and relationships (not destinations) that allow for the construction, deconstruction and reconstruction of democracy ‘in ever-changing circumstances.’[59]
This principle of democratic inclusion is best effectuated by a deliberative theory of democracy. The deliberative theory of democracy is concerned with ‘open and uncoerced deliberation aimed at reaching a rational consensus concerning the common good or the public interest’.[60] Deliberative democracy is a process of developing preferences through dialogue which, in the absence of unanimity, will be precluded by a majority decision. It acknowledges the individual’s capacity for impersonal reflection and reasoned deliberation. The process of deliberation improves people’s control over decisions that affect them and thus improves self-rule. Deliberative democracy also promotes political equality through the expression, discussion and consideration of differing perspectives. Acknowledgment of the differing views not only promotes tolerance and understanding, but also encourages a critical analysis of the current provisional consensus of society. Finally, deliberative democracy recognises the evolutionary nature of democracy. Any majority decision made, amidst the noise and conflict about democracy and the direction of society, is provisional only.[61]
The interpretative theory of incompletely theorised agreements is also important to operationalise the principle of democratic inclusion.[62] Constitutions embed the provisional truce about democracy reached via a deliberative process. Legislation similarly reflects the provisional truce about a particular matter reached via the deliberative process. Constitutional arrangements and legislative outcomes should be viewed as ‘incompletely theorised agreements’ that reflect and implement the provisional agreement, but which are open to review and revision.[63]
The theory of incompletely theorised agreements manages the indeterminacy of human rights and democracy. In a pluralist society, such as Australia, people will disagree about issues. However, people will agree that a common settlement should be reached. People may disagree about a large-scale principle, but the issue may be resolved by agreement on low-level principles and particular outcomes without having to agree on the general principle (and vice versa). Whether consensus is reached at the level of high-level principle, low-level principle or particular outcome, the point is that a consensus is reached. Common settlement of the issue, based on an incompletely theorised agreement, promotes mutual respect, reciprocity and stability. In this situation, the deepest and most defining beliefs and commitments of some people are not rejected by or subordinated to others’. Moreover, by not once and for all committing society to overarching general principles or particular outcomes, the morals and values of society can evolve and respond to changing circumstances. Finally, society can move ahead on the basis of the provisional settlement.
Incompletely theorised agreements are part of a theory of just institutions. According to Sunstein, power can only be legitimately exerted by just institutions, and just institutions must be founded on democratic considerations.[64] Democratic considerations require some interests to be removed from the agenda of just institutions. Constitutions (and to a less effective extent, statutes) define what is and is not immune from democratic intrusion by just institutions. Constitutions are, in fact, incompletely theorised agreements containing incompletely theorised standards. They tend to reflect agreement at a high-level of abstraction, because people can agree at the abstract level about how to live, but cannot agree about its specification.[65] The incompleteness of the standards and underlying theory reflect the indeterminacy of democracy and human rights. This opens the way for change — for improved conditions of self-rule, conditioned by political equality.
Thus, the deliberative theory of democracy and the interpretation theory of incompletely theorised agreements best implement the principle of democratic inclusion, which seeks better self-rule and political equality.
An effective political democracy, as encapsulated by the principle of democratic inclusion, does have human rights implications: ‘securing respect for all categories of human rights must assume priority’.[66] Democracy is both dependent on, and limited by, human rights. The notions of self-rule and political equality inherent in the principle of democratic inclusion are attainable only through respect for human rights.
Focusing on the civil and political rights guaranteed under the ICCPR demonstrates the dependency of democracy on human rights.[67] The principal human right is the right to self-determination,[68] which includes the right of a people to collectively determine its political status. A core component of this is the right to free, fair and open participation in the democratic processes of government.[69] The right to vote and the right to run for public office are also aspects of self-determination.[70] Freedom of expression and of assembly and association create the conditions for debate which are essential to a democratic order.[71] Nor could individuals participate effectively in a democracy without rights to liberty, physical integrity and due process.[72]
The ICCPR also provides essential limits to democratic power. Democracy is not self-limiting, yet it requires limitation. The guarantee of regular elections ensures the periodic accountability of the representative arms of government. Freedom of expression, assembly and association foster the deliberation and accountability that are essential to controlling and limiting power within a democracy.[73] Freedom of conscience, religious belief and thought, rights of non-discrimination, and rights of minorities, ensure that all views can be aired and debated without fear.[74] Rights to personal liberty, physical integrity and due process limit the influence of democracy.
Human rights protections improve self-rule by enhancing the control of citizens over decisions that affect them. Human rights, particularly constitutionally-entrenched rights, require the ‘state authority ... to justify itself to the citizenry on a continuing basis.’[75] Exercises of political power must be justified as rational and reasonable.[76] The more transparent and open the processes and reasoning of the elected arms of government, the more fully informed the citizenry is about the direction in which the government is taking society. This augments genuine self-rule. Civil and political rights aid the transparency of government.
Political equality is aimed at the diminution of the disparities in rights and opportunities. Human rights thus promote political equality. Human rights are guaranteed to all in a non-discriminatory manner.[77] The protection of minority rights promotes the coexistence of minority culture within the majority culture. Non-discrimination rights and minority rights also encourage tolerance, broad-mindedness and understanding within a diverse population. The various public participation and personal integrity rights ensure that minority voices are heard and accounted for in decisions concerning the direction of society. All views are protected and thus legitimised. Decisions produced from a plurality of perspectives are also more likely to dissipate disparities in the availability of opportunities and to secure the protection of rights.[78]
In theory, we can reconcile an effective political democracy with rights protection. In practice too, modern rights protection instruments embrace the elements of an effective political democracy in which the evolving nature of human rights and democracy can be accommodated. In attempting to improve self-rule and political equality, modern rights protection instruments incorporate the diversity of views, disagreement and uncertainty about democracy and human rights. Democracy, human rights and the direction of society are designed to be ongoing debates in which the representative arms of government have an important and influential voice but do not monopolise debate. By institutionalising an interplay and dialogue between the represented, the representative arms of government, and the unrepresentative arm of government, self-rule moderated by political equality is secured.
The Charter and the Human Rights Act ensure an effective political democracy in a variety of ways. These include the amendment procedures of rights protective instruments, the ambiguity associated with rights specification, the scope of the rights specified, the remedies available to rights enforcers, and the responses available to the representative law-makers. These mechanisms highlight not only the inconclusiveness of our understanding of democracy and human rights, but also the pluralistic approach to furthering our understanding of democracy and human rights.
A brief introduction to both models is needed. The Charter guarantees a variety of rights and freedoms.[79] However, the rights so guaranteed are subject to any reasonable limits that are prescribed by law and that can be demonstrably justified in a free and democratic society, under s 1. The powers of the judiciary include the ability to invalidate legislation that offends a Charter right and which cannot be defended under s 1.[80] The Charter also contains an ‘override clause’. Section 33(1) allows the ‘Parliament [to] expressly declare in an Act of Parliament ... that the Act or a provision thereof shall operate notwithstanding a provision included [in] this Charter.’[81]
The Human Rights Act incorporates arts 2–12 and 14 of the ECHR.[82] The judiciary must interpret primary and secondary legislation, so far as it is possible to do so, in a way that is compatible with the incorporated ECHR rights.[83] The judiciary is not empowered to strike down legislation that cannot be read compatibly with ECHR rights. Rather, primary incompatible legislation stands and must be enforced. All the judiciary can do is make a ‘declaration of incompatibility’.[84] The legislature then has a number of options. It may ignore the declaration. Alternatively, it may choose to repeal or amend the incompatible legislation by the ordinary legislative process. Moreover, a Minister may take remedial action, in the form of subordinate legislation, to remedy the incompatibility.
Recognition of the evolving nature of human rights and democracy is evident in the provision for amendment contained in rights protection instruments. Most rights protection instruments, whether constitutional or otherwise, allow for change, thereby anticipating circumstances where diversity, disagreement and uncertainty may arise. Both the British and Canadian regimes allow for amendment to the range and definition of the protected rights.
If rights are contained in ordinary legislation, later inconsistent legislation can override the rights, subject to ‘manner and form’ provisions. A capacity to accommodate diverse views, future disagreements and uncertainties is retained. This is the case under the Human Rights Act, which is an ordinary enactment of the British Parliament and as such its future amendment is not subject to any special manner and form requirements. Moreover, the doctrine of implied repeal has been excluded under the Human Rights Act.[85] Thus, the representative arm of government can alter the provisional, incompletely theorised agreement in response to a change in circumstances, whether that change is motivated by the view of the represented or by a (dis)agreement with the unrepresentative arm of government.
In constitutional rights instruments, the inclusion of provisions allowing for constitutional amendment explicitly acknowledges that disagreements or unforeseen circumstances may arise requiring change. Express constitutional amendment provisions may contain extraordinary legislative requirements, but this does not detract from the capacity of such instruments to accommodate unforeseen disagreements or changed circumstances. The Charter is contained within the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, and can be amended via extraordinary procedures.[86] The federal Parliament must assent to the amendment before it is put to referendum.[87] To succeed at referendum, a majority in two-thirds of the provinces must assent to the amendments, provided that the two-thirds represents 50 per cent of the total population.[88] In other words, it needs both two-thirds of the provinces to approve the referendum (by simple majority) and a simple majority of Canadians as a whole to approve the referendum. This provision is not a veto power, and nor does it impose a unanimity requirement; one province cannot obstruct a change that seven Provinces and 50 per cent of the population support.[89] Again, the most important and defining commitments of society are open to reform, reflecting the capacity of the system to cope with the ongoing maturation of the Canadian polity.
The provisional and flexible nature of rights is further illustrated by the vagueness of these instruments. Modern rights protection instruments are deliberately vague and ambiguous in circumstances of diversity, disagreement and uncertainty. Things that cannot be known and agreed upon in any verifiable manner are
left undefined and allowed to remain ‘sufficiently obscure to allow them to retain an approximate appearance of internal coherence and clarity, while at the same time accommodating several potentially conflicting and quite unresolved points of issue.’[90]
Such incompletely theorised agreements and standards may be criticised. Tushnet describes ‘the language of rights’ as being ‘so open and indeterminate that opposing parties can use the same language to express their positions.’[91] This indeterminacy is considered a weakness, as ‘rights talk can provide only momentary advantages in ongoing political struggles.’[92]
In contrast, an effective political democracy views indeterminacy as a strength. Democracy and human rights are defined by ongoing political struggles. There is no agreed essence to democracy and human rights, so indeterminacy is a given. Indeed, indeterminacy is positive in that it allows for the evolution of democracy and the concomitant human rights standards. At some stage in the deliberative democratic process, compromise will produce temporary definitions that can be used until deeper and further consensus can be reached. The incompletely theorised agreement will promote mutual respect, reciprocity and stability. In these conditions, citizens have participated in the processes that impact on their lives, the participation proceeded on the basis of equality of all voices, and society is not indefinitely committed to a particular compromise because of the imprecision of the guarantees.
It is a myth that rights are absolute ‘trumps’ over majority desires or whims. In fact, most rights are not absolute.[93] Rights are balanced against and limited by many other values and communal needs. A plurality of values are accommodated and the specific balance between the values is assessed by a plurality of institutional perspectives.
Many rights are expressly qualified. Under the ECHR, which is the basis for the Human Rights Act, every person has the right to liberty and security of their person, but this may be displaced in specified circumstances (such as lawful detention after conviction by a competent court or the detention of a minor for the lawful purpose of educational supervision).[94] The ECHR also qualifies the right to life. A deprivation of life resulting from the use of force that is not more than absolutely necessary in defence of unlawful violence, in order to effect an arrest, or for the purpose of quelling a riot or insurrection, is not a violation.[95]
Rights can also be internally limited. Under the ECHR, the rights contained in arts 8–11 are guaranteed, subject to interference in specified circumstances. Interference is allowed in such circumstances to protect public safety, public health, public order, morals, the national interest, or the rights and freedom of others.[96] The precise terms and justifications for the internal limits of each article differ, but the European Court has adopted the same technique when considering the validity of the limitations.[97] This technique bears consideration as it supports the principle of democratic inclusion and is directly relevant under the Human Rights Act. Section 2 of the Human Rights Act requires British courts, in determining whether a law or action is incompatible with a ECHR right, to take into account the jurisprudence of the Strasbourg organs.[98] The words emphasised above demonstrate that ‘[t]he judgments are relevant, not compelling, aids to interpretation.’[99]
The European Court of Human Rights interprets the ECHR purposively. The ECHR is a ‘living instrument which ... must be interpreted in the light of present-day conditions.’[100] As discussed above, the fundamental purposes of the ECHR include the establishment and maintenance of an effective political democracy and the understanding and observance of human rights.[101] Features of a democratic society include ‘pluralism, tolerance and broadmindedness’[102] and adherence to the rule of law.[103] The European Court of Human Rights does not equate democracy with majoritarianism; it requires ‘a balance ... which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.’[104] The ECHR guarantees rights that are practical and effective, rather than those that are theoretical and illusory.[105] Moreover, the ECHR is concerned with an individual’s substantive position, not their formal position; it encourages courts to look behind formal rules and consider how practices operate in reality.[106]
It is clear that the Court’s general interpretative principles support the principle of democratic inclusion. The practical and effective protection of rights enhances control over decision-making and thus self-rule. The purposive and substantive approaches to rights interpretation will advance the goal of substantive political equality. Self-rule will be moderated by substantive political equality. The ‘living tree’ approach to interpretation acknowledges that effective political democracy and human rights are evolving concepts. As such, provisional (rather than final) determinations of the scope of the rights are appropriate.
The approach to ECHR rights that are subject to internal limits also supports the principle of democratic inclusion. Once a ECHR right is prima facie engaged, the validity of any limitation on the right must be assessed. Limitations are valid if three criteria are satisfied: they must be prescribed by law, intended to achieve a legitimate objective, and necessary in a democratic society.[107]
First, to be prescribed by law, the interference with the right must be governed by an ascertainable legal regime. This will be satisfied if the law has a basis in domestic law,[108] and the law itself is adequately accessible and sufficiently clear such that a citizen can adjust their conduct.[109] Secondly, the legitimate objectives that can justify a limitation are outlined in the articles themselves. As mentioned above, the objectives include the protection of public safety, public health, public order, morals, the national interest, or the rights and freedoms of others. Satisfying this test is not too demanding, given the breadth of the objectives and the need to satisfy only one of the stated objectives.[110] Finally, the question of whether interference with a right is ‘necessary in a democratic society’ is twofold. Firstly, the term ‘necessary’ requires a ‘pressing social need’ for the interference.[111] The second element is proportionality.[112] A legitimate aim will not suffice if the interference is excessive in the circumstances.[113]
The internal limitation test secures the elements of an effective political democracy. The representative arms of government have great latitude in moulding an objective to one of the broadly stated legitimate aims, thus promoting self-rule. The achievement of this objective, however, must strike ‘a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights,’[114] thus ensuring self-rule that is subject to political equality. The representative branches of government strike their version of a fair balance, and the judiciary can reassess this balance. Only where self-rule or political equality are threatened or compromised would the judiciary interfere with the balance struck by the representative arms of government; a stance reflected in the wide margin of appreciation allowed by the judiciary to representative branches of government. This balancing, by both the elected and unelected arms of government, is a matter of fact and degree and is always evolving.
Assessment of the Human Rights Act and its compatibility with an effective political democracy must begin with an analysis of s 19. Under s 19(1)(a), the responsible Minister must make a statement that a bill is compatible with Convention rights. If a statement cannot be made, the responsible Minister must make a statement that Parliament is to proceed with the bill regardless of the inability to make a statement of compatibility under s 19(1)(b).[115] A statement under s 19(1)(b) is expected to ‘ensure that the human rights implications [of the bill] are debated at the earliest opportunity.’[116] Section 19 squarely places human rights at the heart of the legislature’s role: law-making. Parliament’s formal role thus includes defining and refining the meaning of human rights, which in turn defines and refines our understanding of democracy. Parliament has a legitimate voice in the human rights project.
In assessing the judiciary’s role in the human rights project, we begin with the judicial interpretative obligation outlined in s 3. This section requires that so far as it is possible to do so, primary and subordinate legislation must be read and given effect to in a way that is compatible with the Convention rights.[117] If two interpretations of a law are possible, one that is compatible and the other incompatible with Convention rights, the former must be chosen. The judiciary is obliged to search for compatible legislative meanings and it is only where the legislative language clearly precludes compatible interpretations that the judiciary will be required to sanction incompatible readings. In effect, s 3 creates ‘a rebuttable presumption in favour of an interpretation consistent with Convention rights. Given the inherent ambiguity of language the presumption is likely to be a strong one.’[118] A s 19(1)(a) statement will strongly influence the judiciary to interpret legislation compatibly with Convention rights. The converse does not necessarily follow, although s 19(1)(b) statements will weaken the interpretative presumption.
The s 3 interpretative obligations will lead to controversy. Interpreting broadly worded rights, invoked in controversial cases, may in and of itself expose the judiciary to criticism. Moreover, the approach to judicial interpretation has changed. Traditionally, judges were to identify the true meaning of the words used by Parliament. Section 3 ‘goes far beyond the [traditional] rule’,[119] by enabling the judiciary so far as it is possible to do so, to find a meaning that upholds ECHR rights, whether or not that happens to be the true meaning of the words used by Parliament. In interpreting legislation compatibly with Convention rights, the judiciary may in fact undermine the objective of the legislation, rendering it incapable of achieving its intended purpose. This clearly places the judiciary in a controversial law-making role.
However, the parliamentary debates somewhat quell this concern. According to the Lord Chancellor, the courts should ‘strive to find an interpretation of legislation which is consistent with convention rights so far as the language of the legislation allows and only in the last resort to conclude that the legislation is simply incompatible with them.’[120] According to the Home Secretary, s 3 is supposed to enable ‘the courts ... to find an interpretation of legislation that is consistent with convention rights, so far as the plain words of the legislation allow’.[121] In other words, s 3 does not condone any distortion of parliamentary words,[122] ensuring that parliamentary sovereignty is not replaced by judicial sovereignty.
Where legislation cannot be read compatibly with Convention rights, the courts are empowered to issue a declaration of incompatibility. However, such a declaration does not affect the validity, continuing operation or enforcement of the primary legislation.[123] In an effort to preserve parliamentary sovereignty over judicial sovereignty, the Human Rights Act does not allow for the judicial invalidation of primary legislation. Rather, the Human Rights Act ‘is like a compass, and all English law must point to magnetic north, which represents Convention rights.’[124]
Thus, under the Human Rights Act, the obligations of judicial interpretation will enhance the deliberative debate. This process starts with the s 19 statement, which ensures that Convention rights become part of the political dialogue during the formulation of policy and during the parliamentary legislative process. The temporary consensus will be assessed for its reason, rationality, and adherence to minimum human rights standards if challenged in a court. Thus, a pluralistic dialogue is established, with different institutional perspectives being debated pre- and post-enactment. A challenge to legislation based on Convention rights will promote a substantive view of political equality, the requisite elements of which are free to be developed over time. However, strained interpretations of the Convention rights will not be sanctioned, nor can the judiciary invalidate incompatible legislation, both of which ensure that self-rule is maintained. This self-rule is based on parliamentary sovereignty, tempered by judicial input: although the incompatible legislation will remain in force, a judicial declaration of incompatibility will produce an institutional discussion about democracy and human rights, in which the reasoned and rational viewpoint of the judiciary is added to the multitude of voices aired during the representative deliberation.
Rights can also be externally limited. The Charter is a good example of this. Section 1 of the Charter guarantees all the rights contained in the Charter are subject to any reasonable limits that are prescribed by law and that can be demonstrably justified in a free and democratic society. The scope of the rights has been greatly influenced by the s 1 justification. Rather than restricting the breadth and reach of the rights by narrowly defining their content, the Canadian courts have been more willing to pursue broad, purposive interpretations, given that s 1 allows certain limits to be placed on the rights.[125] Dickson J held:
The interpretation should be ... a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore ... be placed in its proper linguistic, philosophic and historical contexts.[126]
The Canadian courts follow a two-step process in Charter challenges: first, they must decide whether the legislation violates a Charter right, generously defined; second, if there is a violation, they must decide whether that legislation should nonetheless be upheld under the s 1 reasonable limitation justification. In relation to the latter, restrictions on rights are legitimate if, first, the limitation is prescribed by law and, second, if the limitation is reasonable and demonstrably justifiable in a free and democratic society. To be prescribed by law, there must be
some positive legal measure imposing a discernible standard sufficient to guide with reasonable clarity the individual whose rights are limited and the State officials responsible for enforcement. While measures that leave some room for judgment in application will be tolerated, laws that confer an open-ended or vaguely defined discretion to limit protected freedoms will not.[127]
The test for deciding whether a limit is reasonable and demonstrably justified in a free and democratic society was outlined in R v Oakes[128] in which Dickson CJ held that the court must ‘be guided by the values and principles essential to a free and democratic society’.[129] Dickson CJ then outlined a functional test.[130] The first step is to ensure reasonableness, in that the objective of the legislation which limits the Charter right must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’.[131] At a minimum, the objective must relate to concerns which are pressing and substantial in a free and democratic society.
The second step addresses the demonstrably justifiable standard. Dickson CJ held that this phrase is aimed at reconciling competing interests and is best verified by a proportionality test. There are three components to the proportionality test. The first component is a rationality test. The ‘measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations.’[132] The second component is the ‘minimum impairment’ test. The means chosen by the legislature must ‘impair “as little as possible” the right or freedom in question’.[133] Finally, there must be proportionality between the deleterious effects of the legislation which limits the right, and the objective identified as being of ‘sufficient importance.’ The later case of Canadian Broadcasting Corporation v Dagenais[134] found that ‘there must [also] be a proportionality between the deleterious and the salutary effects of the measures.’[135]
There is debate about whether, and the extent to which, the s 1 external limit promotes deliberative democracy, in the form of institutionalised dialogue about the limits of democracy between the elected arms and the unelected arm of government.[136] These claims must be assessed against the identified elements of an effective political democracy. The principle of democratic inclusion is founded upon protection of human rights, as human rights underpin self-rule, political equality and deliberative democracy, and are consistent with the incomplete nature of democracy. According to the principle of democratic inclusion, judicial review under the Charter should be considered part of the ongoing debate to develop democracy and the concomitant human rights, with the view to achieving and improving self-rule and political equality. Self-rule moderated by political equality will be achieved by dialogue between the people being represented and the elected and unelected institutions of government. Judicial review should avoid once and finally committing society to overarching general principles. However, judges may engage in a certain level of theoretical decision-making when the democratic process breaks down or is less reliable. How does the Charter fare?
The study prepared by Hogg and Bushell on situations of dialogue between the legislature and the judiciary is instructive.[137] Dialogue is defined as ‘those cases in which a judicial decision striking down a law on Charter grounds is followed by some action by the competent legislative body.’[138] Any legislative sequel to a judicial decision is ‘dialogue’ because ‘legislative action is a conscious response from the competent legislative body to the words spoken by the courts.’[139]
Where a judicial decision is open to legislative reversal, modification, or avoidance, then it is meaningful to regard the relationship between the Court and the competent legislature body as a dialogue. In that case, the judicial decision causes a public debate in which Charter values play a more prominent role than they would if there had been no judicial decision. The legislative body is in a position to devise a response that is properly respectful of the Charter values ... identified by the Court, but which accomplishes the social or economic objectives that the judicial decision has impeded.[140]
Of the 65 decisions that struck down legislation for an unjustified breach of the Charter in the period 1982–97, 52 (80 per cent) have had legislative sequels.[141] Of the legislative sequels, in 43 of the 52 cases (83 per cent) the legislature amended the impugned law.[142] In most cases the requisite change was minor and did not forfeit the objective of the legislation. The language contained in the legislative responses highlights the legislature’s consideration of, and interaction with, court decisions. The legislative responses tended to be prompt;[143] where there was delay, this in itself may constitute a response in the form of protest.
These statistics indicate that the Charter may prompt a dialogue between the courts and the legislature, ‘but it rarely raises an absolute barrier to the wishes of the democratic institutions.’[144] Hogg and Bushell correctly conclude that judicial review under the Charter, as an exercise in dialogue, is democratically legitimate:
Judicial review is not ‘a veto over the politics of the nation,’ but rather the beginning of a dialogue as to how best to reconcile the individualistic values of the Charter with the accomplishment of social and economic policies for the benefit of the community as a whole.[145]
Various features of the Charter were identified as facilitating this dialogue;[146] of special relevance are the interpretative features and the override clause. The interpretative features help to secure an effective political democracy. The legislature will presumably intend to pass laws that do not violate Charter rights, or at least the legislature’s understanding of those rights. Legislation is based, or at least should be based, on a dialogue which members of the legislature have had with their constituencies. If a law is subsequently challenged, dialogue occurs between the legislature and the judiciary about the definition and scope of the rights vis-à-vis the impugned law. If the judiciary disagrees with the legislature’s assessment of the law and finds that it violates a right, the dialogue turns to defence of the violation.
The defence dialogue focuses on the reasonableness and justifiability of the law.[147] Although the reasonableness of a limitation — whether the objectives relate to concerns that are pressing and substantial in a free and democratic society — is crucial in defining the directions of society, it has had little impact on the judiciary’s assessment of the law. Of all the statutes that have violated Charter rights, 97 per cent have been held to be sufficiently justifiable by the Supreme Court.[148] This confirms two things: first, that the Supreme Court is unwilling to engage in final, high-level theorising about principles and commitments which define society; second, and relatedly, the Supreme Court is unwilling to make final decisions about the direction of society, in the sense of permanently removing issues from the arena of democratic debate. By rarely undermining legislative objectives, and thus avoiding high-level philosophical conclusions, the courts do not ‘concretise’ issues that should remain open to democratic review. The underlying aim of deliberative democracy and incompletely theorised agreements — to form provisional truces — is honoured.
The Canadian Supreme Court’s approach to proportionality also indicates a respect for the elements of an effective political democracy. A lesser, but nonetheless substantial, majority of limitations are also found to be rational; that is, 86 per cent of violations possess a rational connection.[149] However, it is the ‘minimum impairment test’ that most s 1 Charter justifications fail. Of the 50 (out of 86) infringements of Charter rights that have failed the R v Oakes test,[150] 86 per cent (43 infringements) failed the minimum impairment test.[151] Moreover, all legislation that passed the minimum impairment test passed the R v Oakes test.[152]
Thus, legislative policy is seldom overridden by constitutional norms imposed by the judiciary.[153] According to Hogg and Bushell, by relying on the minimum impairment test, dialogue between the unelected and elected arms of government is facilitated. The executive and legislature have room to manoeuvre in response to the judicial view. If the court identifies a less restrictive alternative method, the legislature can enact that alternative method or a similarly less restrictive alternative. If the suggested alternative is not practicable, the legislature can devise another alternative that is workable. This signifies a constructive debate which ensures that legislative objectives are achieved at a minimum cost to fundamental rights and freedoms.
Beyond this statistical analysis, many commentators agree that s 1 reinforces democracy.[154] For instance, Beatty argues that an upshot of s 1 analysis has been the courts demanding that ‘the Governments involved ... pursue their political manifestos in ways and by means that impaired the constitutional entitlements of those affected as little as possible.’[155] Hiebert agrees:
The Court’s contribution is not to scrutinize the merits of the particular legislative scheme but to evaluate the quality of how the legislative decision was made and to ensure that core rights have not been unduly compromised.[156]
The interpretative approach of the Supreme Court reinforces the principle of democratic inclusion. Section 1, by requiring a rational and reasoned justification for encroaching on rights and freedoms, improves the debate about how society is to live. By relying heavily on the minimum impairment test for invalidity, the Court does not finally nor permanently preclude legislative objectives. Rather, it initiates a dialogue between the courts and the legislature about the requirements of self-rule and political equality, and about the manner in which legislative objectives are pursued. This is beneficial for deliberative democracy, as ‘those who ... have been ignored by their Governments can insist that valid explanations be provided for why they have been treated as they have.’[157]
Thus, self-rule is enhanced and political equality is further entrenched. The ultimate role of policy determination and implementation remains with the representative arms of government. The essence of representative and responsible government remains untouched. However, in addition, the representative arms of government are held to account for the way in which they choose to pursue their policy objectives. Democracy is about participation, dialogue, and rational and reasonable methods of achieving social outcomes. Forcing representative arms of government to justify their behaviour in these terms strengthens the legitimacy of their decisions, and should strengthen the confidence in democracy of all, particularly those traditionally excluded from political debate.
The salient point is that the non-absoluteness of rights accommodates diversity and difference of opinion about human rights, democracy and the direction of society. Rights do not necessarily trump other values and, in fact, are designed to be able to accommodate competing human rights and competing democratic values where required. By ensuring that multiple perspectives structure our provisional truces, majoritarian concerns are tempered by improved self-rule and substantive political equality for all.
Many modern rights protection instruments allow for legislative and executive reaction after judicial review. The potential for such reaction ensures that democracy and human rights truces are open to change, and that the conditions of self-rule and political equality are the product of a dynamic, inter-institutional debate rather than the dictates of one arm of government (in this case, the judiciary). I will consider the British and Canadian models in turn.
In Britian, rather than empowering the judiciary to invalidate laws that are incompatible with ECHR rights, the judiciary may only make declarations of incompatibility. As discussed above, such a declaration does not affect the validity, continuing operation or enforcement of the provision to which the declaration applies, nor is the declaration binding on the parties to the proceeding in which it is made.[158] The power to make declarations of incompatibility is limited to the higher courts, namely the High Court, the Court of Appeal and the House of Lords.[159]
The notion of declarations of incompatibility is congruent with the principle of democratic inclusion. The deliberative process continues via an inter-institutional dialogue, ensuring that no arm of government has a monopoly on the final resolution of the defining commitments of society. However, the ongoing dialogue promotes self-rule subject to an institutional debate based on rational and reasoned judicial input. Moreover, the dialogue includes the judicial perspective on the protection of political equality.
According to the Human Rights White Paper (UK), a judicial declaration of incompatibility is part of an inter-institutional dialogue. A declaration of incompatibility ‘will almost certainly prompt the Government and parliament to change the law’[160] and ‘the Government would have to consider, and in most cases [it] would consider the position pretty rapidly.’[161] There is likely to be intense public interest in response to a declaration of incompatibility and strong public pressure to change the law. The government and the legislature will not be able to ignore the situation because the victim of the violation retains the right of recourse to the European Court of Human Rights under the ECHR.[162] A debate between the represented, the elected and the unelected arms of government is precisely what the principle of democratic inclusion promotes.
The British Government favoured judicial declarations of incompatibility over judicial powers of invalidation primarily to preserve parliamentary sovereignty. The Government stressed that nothing is beyond the competence of a legislature, with its democratic mandate secured via representative election.[163] The emphasis on the ‘democratic mandate’ of the legislature is not inconsistent with the principle of democratic inclusion, which proffers an understanding of ‘democratic mandate’ that includes self-rule and substantive political equality. The concept of incompletely theorised agreements allows interpretation at a higher theoretical level when democracy is at risk. A law that threatens self-rule or political equality should be interpreted so as to avoid incompatibility, even if this requires high-level theorising. This should not be viewed as an undermining of the democratic mandate; rather, it becomes a necessity in situations where the democratic process has broken down or is less reliable. In essence, a legislature in power under circumstances of non-self-rule or political inequality would lack the requisite ‘democratic mandate’ to justify its claim to undiluted parliamentary sovereignty.
Adherence to parliamentary sovereignty, subject to rights influences, should improve self-rule moderated by political equality. The influence of rights on parliamentary exercises of sovereignty is vital. First and foremost, the judiciary has great influence over the interpretation of legislation under s 3 of the Human Rights Act. Where its interpretative powers cannot produce an outcome compatible with ECHR rights, the option of making a declaration of incompatibility gives the judiciary a role in the ongoing definition of human rights and democracy. Via a declaration of incompatibility, the judiciary can express (and has expressed)[164] its dissatisfaction with legislation considered to undermine self-rule and political equality. The judiciary adds shape to the incompletely theorised standards contained in the Human Rights Act, which mould the limits of parliamentary sovereignty.
The legislature has a number of responses available to it after a declaration of incompatibility.[165] It may decide to do nothing. This would indicate that the legislature has not altered its view of the legislation in light of the institutional perspective of the judiciary. In this situation, the victim can seek redress in the European Court, and the general public can express its (dis)satisfaction with the legislature’s response at the next election. Alternatively, the legislature may decide to pass ordinary legislation in response to the declaration. In addition, the relevant Minister in the executive is also empowered to take remedial action, which basically empowers the Minister to rectify an incompatibility by executive action.
Under the last alternative, if the Minister considers that there are ‘compelling reasons’, he or she may, by ‘remedial order’, make such amendments to the legislation as are considered necessary to remove the incompatibility.[166] Such remedial orders may be issued in two situations:[167] in response to a declaration of incompatibility,[168] or, having regard to a finding of the European Court against the United Kingdom, where a provision of domestic legislation is incompatible with a ECHR obligation.[169] All remedial orders must be made by statutory instrument.[170] Remedial orders must ultimately receive the approval (by resolution) of both Houses of Parliament. In the ordinary situation, a remedial order drafted by the Minister will be laid before Parliament for 120 days and will not come into effect unless it is approved by a resolution of each House of Parliament.[171] In addition, there is an emergency or ‘fast-track’ procedure. If the Minister declares the matter urgent, parliamentary approval is not required before an order becomes operative. Under this fast-track procedure, the Minister need only present the order to each House of Parliament ‘after it is made.’[172] The remedial order will, however, cease to have effect 120 days after it was made unless approved by a resolution of each House of Parliament.[173] Even if the fast-track remedial action is not approved, all acts done under the remedial order remain valid.[174]
The available legislative and executive responses are consistent with the principle of democratic inclusion. The responses to an adverse rights challenge keep the channels of change open. By allowing for declarations of incompatibility (rather than judicial invalidation), debate about human rights and democracy continues between the represented and the elected and unelected arms of government. The judiciary does not have a monopoly over society’s deepest commitments. If the legislature disregards the view of the judiciary, the citizenry can express their views at election time. Moreover, the provision of remedial orders ensures an institutionalised role for the executive in demarcating the requirements of self-rule and political equality. This further embraces the notion inherent in the Human Rights Act that inter-institutional perspectives on democracy and its limits are vital. Overall, the elements of self-rule and political equality, imperative to the principle of democratic inclusion, are open to exploration and improvement as differing perspectives are brought to bear.
There are a variety of remedies available under the Charter, the most powerful being the judicial power to strike down legislation.[175] The other remedies that impact on the scope of legislative provisions are: the severance of the offending provisions; the striking down or severance of the offending provisions coupled with a temporary suspension of the declaration of invalidity; the reading down of the offending provision; or the ‘reading in’ of an appropriate provision.[176]
There are many responses available to the elected arms of government in the face of an adverse judicial decision under the Charter. The capacity to respond to judicial decisions is vital to the ongoing search for the meaning of human rights, democracy and the direction of society. First, the legislature may not respond at all. Indeed, the legislature may prefer to entrust certain issues to the judiciary because of an absence of political will or clear political preference. Second, the legislature may re-enact similar legislation which takes account of the reasons for the initial invalidation. Such re-enactment may follow the precise suggestion of the court, or it may employ a preferable alternative that adopts the spirit of the decision. Finally, and most importantly, the legislature has the power to re-enact the impugned legislation notwithstanding the Charter.
The most famous example of the first situation is the case of R v Morgentaler regarding the right to abortion.[177] Hogg and Bushell correctly highlight that judges cannot be accused of stifling the democratic process where political sensitivities forestall the reaction of the representative arms to a judicial decision.[178] Controversial issues should not be allowed to lie dormant. Laws that no longer reflect community consensus ought to be debated and, if necessary, repealed or replaced. As such, it may take a Charter challenge and subsequent judicial decision to invigorate democracy by effectively forcing the issue onto the public agenda. ‘If a new law is slow to materialize, that is just one of the consequences of a democratic system of government, not a failing of judicial review under the Charter.’[179]
The second situation of re-enactment is pluralism in motion. The legislature will have its reasons for pursuing the legislative objective over the Charter guarantees. The judiciary will have indicated its view of the objective (which is usually supportive) and its view as to why the balance struck between the objective and the infringement of the right was not appropriately balanced. Legislation is usually rejected under the ‘minimal impairment test’.[180] In this situation, the legislature can alter the legislative impairment to rights, whilst still achieving the legislative objective. Policy and principle, pragmatism and reason will inform this decision. If re-enactment is not an option, the legislature retains the choice to re-enact the legislation under s 33.
Section 33, in particular, helps to secure the principle of democratic inclusion and requires further exploration. Legislation (or a provision thereof) that is subject to a ‘notwithstanding declaration’ operates regardless of Charter rights.[181] Notwithstanding provisions are subject to a sunset clause of five years, after which date the Parliament or legislature can re-enact the declaration, with every subsequent re-enactment being subject to the five year sunset clause.[182] Certain democratic, mobility and language rights are exempt from the operation of s 33; they cannot be overriden even with a positive notwithstanding declaration.[183] A notwithstanding provision cannot be applied retrospectively.[184] Only a simple majority is required to enact a notwithstanding provision.
The override clause is far from uncontroversial. Support for the override clause is usually based on the preservation of parliamentary sovereignty. It has been described as an ‘“elegant compromise” between the requirements of democratic governance and constitutionalism in deciding the outer limits of core values.’[185] Also, ‘[f]or those who see judicial review as another form of fallible policy-making, the override is a prudent fail-safe device.’[186] Conversely, the override clause is accused of undermining the Charter by subjecting it to the whims of the majoritarian branches of government. In reality, s 33 is of greater theoretical than practical significance, as most legislatures choose to avoid the serious political consequences of a legislative override of a Supreme Court decision regarding the Charter.[187] The use of s 33 has gained a reluctant acceptance in Quebec and only once to date has it been used to directly overturn a judicial decision.[188] Outside of Quebec, use of the override clause appears to be politically unacceptable.
This need not be the fate of the ‘elegant compromise’. This feature of the Charter (arguably more than any other) promotes the principle of democratic inclusion. The possibility of the legislature disagreeing with a judicial interpretation of the Charter keeps the debate about fundamental beliefs and commitments alive. Section 33 ensures there is no foreclosure on what the fundamental commitments of society should be. Before acting under s 33, the legislature will have to assess the rational and reasoned judicial decision on its merits, gauge the public mood, and decide whether it truly believes the judges misunderstood a core value. Of course this will be a last resort — the legislature will be forced to use s 33 only where the judiciary rejects its legislative objective, something that has occurred in only 3 per cent of the cases.[189] In terms of the principle of democratic inclusion, at this point dialogue between the courts and the legislature is exhausted, but the dialogue between the electorate and the legislature continues.
If a legislative decision to utilise the s 33 power turns out to be political suicide, then so be it. The people have been presented with two versions of their defining commitments (at that point in time) and have freely chosen one version. Self-rule has been enhanced, in the sense that individuals can express their informed (dis)approval at the next election. The conditions required for political equality will have been fully explored by the elected and unelected arms of government and the citizenry. The entire episode will be one of the ongoing steps toward democratic inclusion.
So the question remains as to how to invigorate s 33. How can we instill a sense that s 33 is not ‘anti-rights’? How does one carve out a legitimate role for the elected arms of government in the process of defining human rights and the contours of democracy? How can we instill greater trust in the political process?
The concern about constitutionalising rights is that it can undermine self-rule. If political power is limited by a constitution, and the judiciary has a monopoly over constitutional interpretation, political power is constrained by the constitution but judicial power is not. What is initially considered to be constitutional supremacy, rather than legislative supremacy, is no more than a guise for judicial supremacy. ‘The paradox is that judicial enforcement of rights in the name of liberal constitutionalism may destroy the most important right that citizens in liberal democracies possess, [namely] the right of self-government.’[190] Judges, as well as politicians, may strike the wrong balance on occasion:
That judges should review government action and pass judgment on its constitutionality is a relatively uncontroversial proposition; that the proper functioning of liberal constitutionalism requires these judgments to be, for all practical purposes, final is debatable.[191]
No arm of government should have exclusive power to interpret the limits of liberal constitutional rights. Both the legislature and the judiciary have a legitimate role to play, as ss 1 and 33 reveal. These sections act as a brake on the excessive or unreasonable exercise of power of the legislature (s 1) and the judiciary (s 33). Whilst Charter rights and freedoms act as a check on the legislature, s 1 gives the legislature a chance to justify its rights-limiting choices. Where judicial assessment of the legislature’s rights-limiting choices under s 1 is considered unwarranted, s 33 acts as a check on judicial power. Section 33 provides ‘a structural check on judicial power that better balances “the principle of constitutionalism with active popular sovereignty”.’[192] The dispersal of power between the arms of government provides checks and balances on all exercises of power.
The principle of democratic inclusion stresses the need for self-rule and political equality, thus enabling an open and uncoerced debate about the direction of society. Judicial review of legislative action does add a rational and reasoned perspective to the continuing debate, but s 33 makes certain that it does not stifle or conclude that debate. Section 33 helps to ensure an open and informed deliberation and discussion about the direction of society, which enhances self-rule. Self-rule is indispensable, as it necessitates that whatever (provisional or permanent) commitments do emerge from the debate, they inhere in — and are sourced from — those individuals required to live by them. Political equality, as reflected in human rights standards, is an evolving concept. Its evolution is just as enhanced by legislative actions (under s 33) as by judicial decisions (under s 1). Human rights evolve, as does democracy. Actions taken under s 33 are part of this process of evolution. Use of s 33 should be promoted and accepted as a legitimate assertion of the legislature’s representative voice, otherwise the inter-institutional dialogue may more closely resemble a judicial monologue.
This article has come full circle. What began as a warning against the Australian legislative monopoly of the rights debate ends with a warning against judicial monopoly of that same debate. Neither monopoly will produce values and commitments that inhere in all, and neither alone can compel citizens to adhere to the values and commitments so produced. We must understand that ‘a political community [cannot] flourish, or its citizens develop and improve their own sense of moral responsibility, unless they participate in the community’s deepest and most important decisions about justice.’[193]
In a dynamic and pluralistic society, noise and conflict are the norm. Yet it is common ground that provisional truces, based on incompletely theorised agreements, should allow us to ‘get on with life’. Such truces provide mutual respect, reciprocity and stability. But ‘it would be wrong to believe that constitutions can eliminate conflict by “guaranteeing” ... rights.’[194] What constitutions can do is ensure that another voice is heard, one which has less need to be responsive to the concerns of the majority. This non-majoritarian voice should promote self-rule conditioned by political equality, but should not impose final determinations on what are essentially evolutionary concepts, such as democracy and human rights. The legislature, executive and judiciary have equally valid views on democracy and its limits, as embodied by human rights. Constitutional and legislative structures that encourage and respect an inter-institutional dialogue should be preferred to both legislative and judicial monopolies. Such structures are embodied in the Charter and the Human Rights Act.
Australian debates about democracy and human rights must progress from the simplistic notion that bills of rights illegitimately empower the unelected judiciary. A better balance between the legislature, executive and judiciary in the human rights debate would improve Australian democracy and respect for human rights. Open and uncoerced debates about the conditions required for better citizen control over decisions that affect them, and the process of overcoming the disparities in rights and opportunities available to members of the Australian community, would be improved by a rights dimension. This debate should not be monopolised by one arm of government, but should be engaged in by all three. Models requiring an inter-institutional effort in the demarcation of democracy and human rights do exist, do function without threatening the principle of democratic inclusion, and should be the starting point for the continuing debate in Australia about the best way to secure democracy and human rights.
[*] BEc, LLB (Hons) (Monash), LLM (Hons) (Cantab), PhD candidate (Monash); Lecturer in Law, Faculty of Law, Monash University; Associate Director, Castan Centre for Human Rights Law. The author’s doctoral studies were supported by grants from the Australian Research Council and the Judicial Conference of Australia. This article is based on an earlier draft: Julie Debeljak, ‘Human Rights as Judicial Politics or Parliamentary Judgments?’ (Paper presented at the Castan Centre for Human Rights Inaugural Conference: Human Rights and Global Challenges, Melbourne, 10–11 December 2001). The author wishes to thank Professor Stephen Parker, Professor Jeff Goldsworthy, Sarah Joseph, and the anonymous referees, for their constructive comments on earlier drafts of this article.
[1] Hilary Charlesworth, ‘The Australian Reluctance about Rights’ in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 21, 51.
[2] Even without a rights protection instrument, such allegations may be made. The recent exchange between the Minister for Immigration and Multicultural and Indigenous Affairs and the Chief Justice of the Federal Court of Australia is an example. The Minister’s accusation that, by reviewing the legality (scope of operation) of a privative clause within the meaning of the Migration Act 1958 (Cth) the Federal Court was attempting to deal itself back into the game, suggests a concern about judicial (rather than parliamentary) supremacy. See Benjamin Haslem, ‘Ruddock to Face Federal Court Revolt’, The Australian (Sydney), 3 June 2002, 1; Benjamin Haslem and Amanda Keenan, ‘Butt Out, Ruddock Tells Judges’, The Australian (Sydney), 4 June 2002, 1; Editorial, ‘Ruddock Cops a Judicial Press Release’, The Australian (Sydney), 4 June 2002, 10; Darrin Farrant, ‘Judges Hit Back at Ruddock’, The Age (Melbourne), 4 June 2002, 1.
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 (‘Charter’) and the Human Rights Act 1998 (UK) c 42 (‘Human Rights Act’) respectively.
[4] Neil Morgan, ‘Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?’ (Paper presented at the Fifth Annual Colloquium of the Judicial Conference of Australia, Uluru, 7–9 April 2001); Neil Morgan, ‘Easy Scapegoats and Simplistic Reactions: The Continuing Saga of Mandatory Sentencing’ (Paper presented at the Sixth Annual Colloquium of the Judicial Conference of Australia, Launceston, 26–8 April, 2002).
[5] See generally William Jonas (Aboriginal and Torres Strait Islander Social Justice Commissioner), Social Justice Report 2000, Report No 2/2001; Julie Debeljak, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’ [2000] MonashULawRw 5; (2000) 26 Monash University Law Review 159.
[6] Of particular note is the government’s response to concern expressed about its anti-terrorism legislative package by the Senate Legal and Constitutional Legislation Committee and the general public (see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2], Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (2002)). The government amended this legislative package in response to the Committee’s findings. The legislation enacted to date includes Security Legislation Amendment (Terrorism) Act 2002 [No 2] (Cth), Suppression of the Financing of Terrorism Act 2002 (Cth), Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth), Border Security Legislation Amendment Act 2002 (Cth), Telecommunications Interception Legislation Amendment Act 2002 (Cth).
[7] The acquisition of property on just terms (s 51(xxxi)), the right to trial by jury on indictment (s 80), the freedom of religion (s 116), and the right to be free from discrimination on the basis of interstate residence (s 117).
[8] Eg Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248; King v Jones [1972] HCA 44; (1972) 128 CLR 221.
[9] For example, the separation of judicial power from executive and legislative power (Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245), intergovernmental immunities, and the implied freedom of political speech (Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520). See also Jeremy Kirk, ‘Constitutional Implications (II): Doctrines of Equality and Democracy’ [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24 and Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374.
[10] For judicial statements on an implied right to legal equality, see Leeth v Commonwealth (1992) 174 CLR 455 (especially Gaudron J) and Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1. For a discussion of an implied right to equality of voting power, see A-G (Cth) ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 and Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302.
[11] I have two concerns about the implication of a bill of rights into the Constitution. My first concern is based on the public perception of the proper role of the judiciary. Judicial introduction of human rights standards, for instance via administrative law, will cause (and has caused) controversy and may be considered an improper judicial function. Moreover, I am concerned that judicial introduction of human rights standards will be piecemeal and not comprehensive, with some rights being readily compatible with our existing legal regime and others not being so.
[12] For a more comprehensive discussion, see Geoff Lindell, ‘The Australian Constitution: Growth, Adaptation and Conflict — Reflections about Some Major Cases and Events’ [1999] MonashULawRw 12; (1999) 25 Monash University Law Review 257; Leslie Zines, Constitutional Change in the Commonwealth (1991) 52, discussed in Timothy Jones, ‘Fundamental Rights in Australia and Britain: Domestic and International Aspects’ in Conor Gearty and Adam Tomkins (eds), Understanding Human Rights (1996) 91, 100; George Winterton, ‘Extra-Constitutional Notions in Australian Constitutional Law’ (1986) 16 Federal Law Review 223, 235; H P Lee, ‘The Australian High Court and Implied Fundamental Guarantees’ [1993] Public Law 606, 627–8.
[13] The Commonwealth regime is made up of the Racial Discrimination Act 1975 (Cth) (to implement the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969) (‘Racial Discrimination Convention’)); the Sex Discrimination Act 1984 (Cth) (to implement the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’)); the Disability Discrimination Act 1992 (Cth) (to implement the International Labour Organisation’s Convention Concerning Discrimination in Respect of Employment and Occupation, opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960) and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’)); and the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
[14] Charlesworth, above n 1, 40.
[15] At the expiration of Mick Dodson’s term as Social Justice Commissioner in January 1998, Zita Antonios was appointed as acting Social Justice Commissioner, followed by the appointment of William Jonas as Social Justice Commissioner in April 1999.
[16] In August 1998, the Committee on the Elimination of Racial Discrimination (‘CERD’) issued a ‘please explain’ request to Australia in relation to, inter alia, its changes to the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner: Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 53rd sess, Supp No 18, [22], UN Doc A/53/18 (1998). Australia submitted an extensive report: CERD, Additional Information Pursuant to Committee Decision: Australia, UN Doc CERD/C/347 (1999). After considering Australia’s response, CERD expressed concern about Australia’s proposed changes to the overall structure of the Human Rights and Equal Opportunity Commission (‘HREOC’), particularly the abolition of the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner and the assignment of those functions to a generalist Deputy President: CERD, Decision 2(54) on Australia: Concluding Observations/Comments, [6]–[8], UN Doc CERD/C/54/
Misc.40/Rev.2 (1999). The Australian government rejected the views of CERD. In consequence, CERD decided to continue to consider the matters whilst considering Australia’s 10th, 11th and 12th periodic reports during CERD’s 56th session in March 2000 (Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 54th sess, Supp No 18, [23], UN Doc A/54/18 (1999)). In its concluding observations, CERD expressed concern over the changes to the role and function of the Aboriginal and Torres Strait Islander Social Justice Commissioner which may limit the capacity of the Commissioner to address the full range of issues relating to indigenous peoples: CERD, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, [11], UN Doc CERD/C/304/Add.101 (2000).
[17] HREOC is semi-independent: see generally Human Rights and Equal Opportunity Commission Act 1986 (Cth) and HREOC, ‘Australian Human Rights and Equal Opportunity Commission: About the Commission’ (2002) <http://www.hreoc.gov.au/about_the_commission/index.html> at 20 July 2002. HREOC is funded by the executive arm of government, but it is free to criticise the executive. The amount of funding impacts on the quantity and quality of the work HREOC can undertake. A funding cut to HREOC in the late 1990s resulted in fewer commissioners, staff and resources to undertake its work. For example, although HREOC has five main areas of interest (sex discrimination, disability discrimination, race discrimination, social justice for Aboriginal and Torres Strait Islanders, and human rights) there are only three Commissioners, two of whom have responsibility for two portfolios. The position of President of the Commission was retained.
[18] Including the ICCPR; the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’); the Racial Discrimination Convention; CEDAW; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’); and the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). The Howard Government recently ratified the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 37 ILM 999 (entered into force 1 July 2002) (‘Rome Statute’). Australia signed the Rome Statute on 12 December 1998 and ratified it on 1 July 2002. Australia’s obligations under the Rome Statute were incorporated into domestic law by the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth).
[19] The Constitution empowers the executive to enter into treaties under s 61; but it is the Commonwealth Parliament that is empowered to incorporate these treaties into domestic law under s 51(xxix), a provision which reflects the broader notion that it is Parliament (not the executive) which is the primary law-maker in Australia: see generally Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. For examples of international obligations that have been incorporated into domestic law, see above n 13.
[20] The First Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976) (‘First Optional Protocol’) allows individual complaints to be made under the ICCPR. Australia ratified the First Optional Protocol in September 1991. Article 22 of the CAT also allows states to submit to its individual complaints jurisdiction; Australia has done so.
[22] CERD, Decision 2(54) on Australia: Concluding Observations/Comments, [6]–[8], UN Doc CERD/C/54/Misc.40/Rev.2 (1999). As mentioned in above n 16, this view of the Committee was formed after a ‘please explain’ was issued to the Australian government between reporting times: CERD, Decision 1(53) on Australia, [22], UN Doc CERD/A/53/18 (1998). In fact, the government had not submitted its 10th, 11th or 12th reports, forcing the Committee to issue the request.
[23] Daryl Williams (Attorney-General), ‘United Nations Committee Misunderstands and Misrepresents Australia’ (Press Release, 19 March 1999).
[24] The Human Rights Committee is established under Part IV of the ICCPR. Under the First Optional Protocol, individuals are able to complain to the Human Rights Committee about violations of human rights protected under the ICCPR.
[25] These figures were obtained during a meeting with the Commonwealth Attorney-General, Daryl Williams (Canberra, 27 May 2002).
[26] See Human Rights Committee, Communication No 500/1993: Australia 30/04/97, UN Doc CCPR/C/59/D/560/1993 (1997) (‘A v Australia’) (where mandatory detention of asylum-seekers was held to be arbitrary detention) and the Australian government’s response (Daryl Williams (Attorney-General) and Philip Ruddock (Minister for Immigration), ‘Australian Government Responds to the United Nations Human Rights Committee’ (Press Release, 17 December 1997)); Committee Against Torture, Communication No 120/1998: Australia 25/5/99, UN Doc CAT/C/22/D/120/1998 (1999) (‘Elmi v Australia’) (where it was held that expulsion of an asylum-seeker would violate the obligation not to expel where there are substantial grounds for believing that the asylum-seeker would be in danger of being subject to torture); Human Rights Committee, Communication No 930/2000: Australia 16/08/2001, UN Doc CCPR/C/72/
D/930/2000 (2001) (‘Winata v Australia’) (in which it was held that the deportation of the parents of a 13 year old Australian citizen amounts to an arbitrary interference with family life).
[27] Human Rights Committee, Communication No 488/1992: Australia 04/04/94, UN Doc CCPR/C/50/D/488/1992 (1994) (‘Toonen Case’).
[28] Reading this case is rather surreal. It is quite clear from the Australian government’s submissions to the Committee that it was not committed to saving the Tasmanian law, which it viewed as being out of step with the broader Australian community’s views. It was thus no surprise when the Australian government responded to the decision by enacting the Human Rights (Sexual Conduct) Act 1994 (Cth), which led to the invalidation of the Tasmanian law criminalising consensual adult homosexual activity under s 109 of the Constitution.
[29] The Howard Government’s ratification of the Rome Statute was subject to various declarations, some procedural in nature (such as the declaration that Australia will not surrender any suspect until it has had the opportunity to investigate and decide whether or not it will prosecute) and some substantive in nature (such as the declaration that Australia will interpret genocide, crimes against humanity, war crimes and crimes of aggression according to its domestic law). The permissibility of such declarations remains in doubt. It is for the International Criminal Court to assess whether these declarations are, in fact, reservations and thus impermissible under art 124 of the Rome Statute (see also Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 19 (entered into force 27 January 1980)). In terms of its impact on Australian attitudes to human rights, the picture is unclear. The concern that international human rights obligations undermine Australia’s sovereignty was sympathetically argued by close to half of Howard’s government during Cabinet and party debate on the ratification of the Rome Statute, signalling a resistance to international interference. Moreover, the Rome Statute deals with egregious breaches of human rights (genocide, war crimes and crimes against humanity, with crimes of aggression soon to be defined and made applicable), such that it may have little impact on the government’s attitude to the multitude of its other human right obligations. See also Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002).
[30] Norberto Bobbio, The Age of Rights (Allan Cameron trans, 1996 ed) 26 [trans of: L’eta dei diritti]. Australia’s refusal to sign the Optional Protocol to the Convention on the Elimination of Discrimination against Women, GA Res A/54/4, UN GAOR, 54th sess, Annex, Supp No 49, UN Doc A/54/49 (2000), which would allow individual complaints to that treaty body, is a poignant example of this.
[31] Opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), commonly known as the European Convention on Human Rights (‘ECHR’).
[32] Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (2000) 214–15.
[33] See generally Beth Gaze and Melinda Jones, Law, Liberty and Australian Democracy (1990); Jack Donnelly, International Human Rights (2nd ed, 1998).
[34] This is a consequentialist view of rights (that is, we deny government some choices because the outcomes of such denial are worth it) rather than a deontological view (we pursue the protection of rights because of the intrinsic worth of rights). Moore considers that the utilitarian nature of the legislature requires a rights-based approach to democracy: Michael S Moore, ‘Natural Rights, Judicial Review, and Constitutional Interpretation’ in Jeffrey Goldsworthy and Tom Campbell (eds), Legal Interpretation in Democratic States (2002) 207. He argues that human rights are better justified on rights-based theories (ie that judicial enforcement of bills of rights is justified because judges are likely to give greater protection to certain rights than a utilitarian legislature would). This is still a consequentialist argument.
[35] Lord Bingham, ‘The European Convention on Human Rights: Time to Incorporate’ in Richard Gordon and Richard Wilmot-Smith (eds), Human Rights in the United Kingdom (1996) 1, 10. Any number of human rights instruments, including the ICCPR and the Canadian Charter, could be substituted for the reference to the ECHR.
[36] See generally Rysard Piotrowicz and Stuart Kaye, Human Rights in International and Australian Law (2000) ch 1; Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (2000) ch 2.
[37] Klug, above n 32, 10–12. See Francesca Klug, Keir Starmer and Stuart Weir, The Three Pillars of Liberty: Political Rights and Freedoms in the United Kingdom (1996) 9: ‘as the continuing interpretation of the European Convention has shown, human rights evolve as society evolves — in the same way as the common law itself adapts over time’.
[38] Jack Donnelly, International Human Rights (2nd ed, 1998) 32–5; Bobbio, ‘The Age of Rights’, above n 30, 10.
[39] See above n 18 and accompanying text.
[40] ‘Mode’ of protection implies the importance of two related sets of choices: whether the rights are protected via constitutional or non-constitutional means; and whether it is the executive, legislature or judiciary (or some combination thereof) that should define the rights.
[41] Civil, political, economic, social, cultural, developmental, environmental and other collective rights are indivisible and interdependent. Any human rights package must comprehensively protect and promote all categories of human rights for it to be effective. Particularly in Australia, a bill of rights should contain some recognition of the rights of indigenous peoples, which must include the right to self-determination and the economic, social and cultural rights that flow from this. The linguistic rights of the Canadian Charter are an example of constitutionally entrenched human rights specifically pertaining to indigenous peoples. The broader settlement of the rights of indigenous peoples in Canada did not take place within the Charter; rather, the rights of indigenous peoples are included in s 35 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11. The symbolism of the relegation of the bulk of the rights of indigenous peoples from the Charter to the broader Constitution has caused much controversy in Canada, largely due to the similarly controversial limiting of the terms of s 35. In Australia, indigenous peoples’ rights should be protected within a bill of rights proper, and the rights protected must be broad enough to counter the dispossession, discrimination and inequalities suffered. This article will focus primarily on civil and political rights for three pragmatic reasons: firstly, the length of the article requires it; secondly, the Canadian and British models being studied focus on civil and political rights (with some exceptions, which will be highlighted where relevant throughout the article); and thirdly, in the current Australian political climate, it is very unlikely that a bill of rights that included second and third generation rights would be adopted.
[42] Mauro Cappelletti, ‘Repudiating Montesquieu? The Expansion and Legitimacy of “Constitutional Justice”’ (1985) 35 Catholic University Law Review 1, 28 quoted in Justice R D Nicholson, ‘Judicial Independence and Accountability: Can They Co-Exist?’ (1993) 67 Australian Law Journal 404, 410–11. See also Dennis Davis, Matthew Chaskalson and Johan de Waal, ‘Democracy and Constitutionalism: The Role of Constitutional Interpretation’ in Dawid van Wyk et al (eds), Rights and Constitutionalism: The New South African Legal Order (1994) 1, 1–2:
[The courts have a] custodial function of preserving the decisions of ‘we the people’ against the potential undermining thereof by the government. When ‘we the people’ have formulated a constitutional choice, it binds the more limited authority of the government ... majoritarianism has no exclusive claim on democracy. ... [T]here are certain characteristics to the democratic enterprise which cannot be amended or destroyed even by a majority government.
[43] ‘[D]emocracy is not a unique fundamental value but rather one that must be understood in the light of a very limited list of other such values’: Mac Darrow and Philip Alston, ‘Bills of Rights in Comparative Perspective’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 465, 496.
[44] ECHR, opened for signature 4 November 1950, 213 UNTS 222, preamble (entered into force 3 September 1953).
[45] Norberto Bobbio, The Future of Democracy: A Defence of the Rules of the Game (Roger Griffin trans, 1987 ed) 25–6 [trans of: Il futuro della democrazia].
[46] Case of Young, James and Webster (1981) 44 Eur Court HR (ser A) 25.
[47] Handyside Case (1976) 24 Eur Court HR (ser A) 23; Dudgeon Case (1981) 45 Eur Court HR (ser A) 21–2.
[48] Golder Case (1975) 18 Eur Court HR (ser A) 16–17; Case of Klass and Others (1978) 28 Eur Court HR (ser A) 22.
[49] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 1.
[50] R v Oakes [1986] 1 SCR 103, 136 (Dickson CJ).
[51] Ibid.
[52] In the words of the ECHR, opened for signature 4 November 1950, 213 UNTS 222, preamble (entered into force 3 September 1953).
[53] Martti Koskenniemi, ‘“Intolerant Democracies”: A Response’ (1996) 37 Harvard Law Journal 231, 234 quoted in Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000) 49. See also Bobbio, ‘The Future of Democracy’, above n 45, 18; Tom Campbell, ‘Judging in a Democracy’ (Paper presented at the Second Annual Symposium of the Judicial Conference of Australia, Sydney, 8–9 November 1997) [8]–[9].
[54] Marks, above n 53, 106–7.
[55] See generally ibid 63–7; Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (1996) 118.
[56] If it were considered an end in itself, Marks argues that this would be a disappointingly low-demanding view of democracy. Current democratic theory accepts high levels of citizen passivity. It utilises the existing liberal institutions without addressing the limitations of those institutions. In particular, she queries whether our institutions can function without civil and political rights, and what role the separation of powers should play. Further, democratic theory is yet to address the enormous amounts of unaccountable power being exercised over the lives of citizens by the modern state. These shortfalls in current standards of democracy manifest in the contemporary melancholy about democracy and its ability to ensure self-rule and political participation. See Marks, above n 53, 147–51.
[57] Ibid 109–10.
[58] Ibid 116.
[59] Ibid 149.
[60] Campbell, above n 53, [44].
[61] See Jeremy Waldron, ‘Legislation by Assembly’ in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy, and Legal Positivism (2000) 251. Waldron suggests that we should ‘not be fooled into thinking that calmness and solemnity are necessarily the mark of a good polity, and noise and conflict a symptom of political pathology’: at 267. In other words, he argues that noise and conflict are signs of a healthy polity and that disagreement is the normal background to law formation.
[62] Cass Sunstein, Legal Reasoning and Political Conflict (1996) 45.
[63] Sunstein developed this notion of incompletely theorised agreements: ibid 44–6.
[64] Ibid.
[65] For instance, we can agree to live by the rule of law, but we cannot agree what this means. In the context of rights, most people would agree that cruel, unusual and inhuman treatment is inappropriate, for example, but will disagree about what constitutes cruel, unusual and inhuman treatment.
[66] Marks, above n 53, 116. See also Hiebert, Limiting Rights, above n 55, 118: ‘But public debate is not the only goal of a democratic polity. Policy choices should respect fundamental rights, those contained explicitly in the Charter and others related to its core values.’
[67] The regional conventions and domestic bills of rights also demonstrate the dependency of democracy on human rights; for example, the ECHR, the American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (‘ACHR’), and the African [Banjul] Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 21 ILM 58 (entered into force 21 October 1986) (‘African Charter’), and the Canadian Charter.
[68] The right to self-determination is protected under the common art 1 in the ICCPR and ICESCR. As mentioned, self-determination includes an external element: the right of a people to freely determine its political status and place in the international community. Self-determination also includes an internal element: the right of all peoples to freely pursue their economic, social and cultural development without outside interference. The right to self-determination is thus relevant to civil, political, economic, social, and cultural rights. In other words, these rights, as well as other collective rights, are interdependent and indivisible. Comprehensive protection and promotion of human rights requires the protection and promotion of all categories of human rights. Human rights and democracy cannot function in any society in which economic, social and cultural rights are denied. Hence, although this article focuses primarily on civil and political rights, any Australian bill of rights should consider and include protection of economic, social and cultural rights. This is particularly important for Australian indigenous peoples, whose right to self-determination has been, and continues to be, denied.
[69] Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; Anne-Marie Burley (later Anne-Marie Slaughter), ‘Toward an Age of Liberal Nations’ (1992) 33 Harvard International Law Journal 393.
[70] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 25 (entered into force 23 March 1976), as well as the first Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 213 UNTS 262, art 3 (entered into force 18 May 1954); Charter of the Organization of American States art 5; African Charter, opened for signature 27 June 1981, 21 ILM 58, art 13 (entered into force 21 October 1986).
[71] For freedom of expression, see ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 19 (entered into force 23 March 1976), as well as the Universal Declaration of Human Rights, GA Res 217A, 3 UN GAOR (183rd plen mtg), art 19, UN Doc A/Res/217A (1948); ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 10 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, art 13 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58, art 9 (entered into force 21 October 1986). For freedom of assembly and association, see ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 22 (entered into force 23 March 1976), as well as the Universal Declaration of Human Rights, GA Res 217A, 3 UN GAOR (183rd plen mtg), art 20, UN Doc A/Res/217A (1948); ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 11 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 15–16 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58, arts 10–12 (entered into force 21 October 1986).
[72] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 6–10, 14 (entered into force 23 March 1976), as well as ECHR, opened for signature 4 November 1950, 213 UNTS 222, arts 5–7 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 4–9 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58 arts 6–7 (entered into force 21 October 1986).
[73] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 19–22 (entered into force 23 March 1976), as well as ECHR, opened for signature 4 November 1950, 213 UNTS 222, arts 10–11 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 13, 15, 16 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58, arts 9–12 (entered into force 21 October 1986).
[74] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 2, 3, 18, 26, 27 (entered into force 23 March 1976), as well as ECHR, opened for signature 4 November 1950, 213 UNTS 222, arts 9, 14 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 12, 24 (entered into force 18 July 1978); and the African Charter, opened for signature 27 June 1981, 21 ILM 58, arts 2, 3, 8, 19, 28 (entered into force 21 October 1986).
[76] If governments are required to justify laws as per constitutional rights, ‘[a]ny law that burdened or withheld a benefit from an individual or group [would need to] meet the standards of justice which the principles of rationality and proportionality imply’: David Beatty, ‘Human Rights and the Rules of Law’ in David Beatty (ed), Human Rights and Judicial Review: A Comparative Perspective (1994) 1, 23.
[77] Thus, voting rights are explicitly guaranteed to be without distinction; for example, when arts 2, 3 and 25 of the ICCPR are read together.
[78] For a more complete discussion of the principle of democratic inclusion, in particular, its substantive nature and the ramifications thereof, see Julie Debeljak, ‘Rights and Democracy: A Reconciliation of the Institutional Debate’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Human Rights Protections: Boundaries and Challenges (forthcoming, 2002).
[79] Such as fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, official language rights, and minority language educational rights: see Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, ss 2–23.
[80] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 52. ‘The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’: s 52(1).
[81] To enact legislation containing a s 33 override, a simple majority is needed. Section 33(2) states that legislation (or provisions thereof) that is subject to a ‘notwithstanding’ declaration operates ‘as it would have but for the provision of this Charter referred to in the declaration.’ Sub-sections 33(3)–(5) provide that notwithstanding provisions are subject to a sunset clause of five years, after which date the legislature can re-enact the declaration, with all subsequent re-enactments also being subject to the five year sunset clause. Certain rights are exempted from the operation of s 33 and, thus, cannot be the subject of the override provision. These are the democratic rights (ss 3–5), mobility rights (s 6), and language rights (ss 16–23). A further limitation is that the override clause cannot be applied retrospectively: A-G (Quebec) v La Chaussure Brown’s Inc [1988] 2 SCR 712.
[82] The text of these articles is reproduced in Schedule 1 of the Human Rights Act 1998 (UK) c 42. It also incorporates various articles from the (first) Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 213 UNTS 262 (entered into force 18 May 1954) and Protocol Number Six to the ECHR, opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985).
[83] Human Rights Act 1998 (UK) c 42, s 3. See also United Kingdom, Rights Brought Home: The Human Rights Bill (1997) [2.7] (‘Human Rights White Paper (UK)’).
[84] Human Rights Act 1998 (UK) c 42, s 6.
[85] Section 3 of the Human Rights Act provides that the validity, continuing operation or enforcement of any primary legislation that is incompatible with the Convention rights is not affected by the incompatibility. Thus, the doctrine of implied repeal is expressly excluded. In other words, legislation that predates the Human Rights Act, and that is incompatible with the ECHR rights protected under the Human Rights Act, is not invalid.
[86] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 38.
[87] Amendment may be initiated by the Senate or House of Commons of the federal legislative body, or by the legislative assembly of a province: Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 46(1).
[88] The two-thirds condition means that at least seven of the 10 provinces must agree to the amendment. The 50 per cent requirement, in effect, means that either Ontario or Quebec must agree, since the combined population of Ontario (9 million) and Quebec (6.5 million) is more than 50 per cent of the population of Canada (25 million): Peter Hogg, Constitutional Law of Canada (4th ed, 1997) 112–13.
[89] If more than three provinces were to opt out, the amendment could not pass under Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 38(1). A province may ‘opt out’ under s 38(3) if an amendment ‘derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province’: Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 38(2).
[90] Darrow and Alston, above n 43, 497 (citations omitted).
[91] Mark Tushnet, ‘An Essay on Rights’ (1984) 62 Texas Law Review 1363, 1371.
[92] Ibid.
[93] According to customary international law, the only rights that are absolute are the right to be free from genocide, slavery and servitude, and systematic racial discrimination: American Law Institute, Restatement of the Law (Third): The Foreign Relations Law of the United States (1987) vol 2, 161.
[94] See ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 5 (entered into force 3 September 1953); ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 9, 14 (entered into force 23 March 1976); Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, ss 7–14.
[95] ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 2 (entered into force 3 September 1953).
[96] For example, art 9(2) states that:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
[97] See generally The Sunday Times Case (1979) 30 Eur Court HR (ser A) 31; Handyside Case (1976) 24 Eur Court HR (ser A) 23; Case of Goodwin v United Kingdom (1996) II Eur Court HR 483, 500; Case of Silver and Others (1983) 61 Eur Court HR (ser A) 33.
[98] The relevant organs are the European Court of Human Rights, the European Commission of Human Rights (now defunct), and the Committee of Ministers of the Council of Europe. This is only a duty so far as, in the opinion of the court, the European jurisprudence is relevant to the proceedings.
[99] Michael Beloff, ‘What Does It All Mean?’ in Lammy Betten (ed), The Human Rights Act 1998: What It Means (1999) 11, 33.
[100] Tyrer Case (1978) 26 Eur Court HR (ser A) 15.
[101] In the preamble to the ECHR, the states reaffirm
their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.
The Soering Case (1989) 161 Eur Court HR (ser A) 34 confirmed that the objects of the ECHR include the protection of individual human rights.
[102] Handyside Case (1976) 24 Eur Court HR (ser A) 23; Dudgeon Case (1981) 45 Eur Court HR (ser A) 21–2.
[103] Golder Case (1975) 18 Eur Court HR (ser A) 16–17; Case of Klass and Others (1978) 28 Eur Court HR (ser A) 22.
[104] Case of Young, James and Webster (1981) 44 Eur Court HR (ser A) 25.
[105] Marckx Case (1979) 31 Eur Court HR (ser A) 14; Artico Case (1980) 37 Eur Court HR (ser A) 16; Soering Case (1989) 161 Eur Court HR (ser A) 34. Accordingly, any interference with the exercise of ECHR rights cannot negate the very existence of the right or remove its effectiveness: Case of Mathieu-Mohin and Clerfayt (1987) 113 Eur Court HR (ser A) 23; Ashingdane Case (1985) 93 Eur Court HR (ser A) 24–5; Winterwerp Case (1979) 33 Eur Court HR (ser A) 24.
[106] Adolf Case (1982) 49 Eur Court HR (ser A) 15; Case of Duinhof and Duif (1984) 79 Eur Court HR (ser A) 15–16.
[107] Moreover, limitations are subject to the ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 14 (entered into force 3 September 1953). Thus, a limitation must not be discriminatory, in the sense that any distinction must have an objective and reasonable justification, and must be proportional.
[108] Case of Silver and Others (1983) 61 Eur Court HR (ser A) 33.
[109] The Sunday Times Case (1979) 30 Eur Court HR (ser A) 31. Moreover, the common law may be of sufficient precision for this purpose (statutory law or regulation not being essential).
[110] ‘It is not difficult for a country facing an allegation of the breach of human rights to find a reason relevant to any case’: John Wadham and Helen Mountfield, Blackstone’s Guide to the Human Rights Act 1998 (1999) 13.
[111] The Sunday Times Case (1979) 30 Eur Court HR (ser A) 35–6; Handyside Case (1976) 24 Eur Court HR (ser A) 22; Goodwin v United Kingdom (1996) II Eur Court HR 483, 500.
[112] The concept of proportionality has already made its way into British jurisprudence via European Community law: R v Secretary of State for Employment; Ex parte Equal Opportunities Commission [1994] UKHL 2; [1995] 1 AC 1.
[113] See Soering Case (1989) 161 Eur Court HR (ser A) 35.
[114] Ibid.
[115] The s 19(1) statement must be made before the second reading speech. Under s 19(2), both statements must be made in writing and published in such manner as the Minister making it considers appropriate.
[116] Human Rights White Paper (UK), above n 83, [3.3].
[117] Ibid [2.7]. The interpretative obligation applies to primary and subordinate legislation whenever enacted. This ‘will prove a strong form of incorporation’: United Kingdom, Parliamentary Debates, House of Lords, 3 November 1997, col 1230 (Lord Irvine, Lord Chancellor). This obligation goes well beyond the pre-existing interpretative rule to construe any ambiguous legislation in a manner compatible with relevant treaty obligations: see Beloff, above n 99, 29.
[118] Lord Steyn, ‘Incorporation and Devolution — A Few Reflections on the Changing Scene’ (1998) 3 European Human Rights Law Review 153, 155.
[119] Human Rights White Paper (UK), above n 83, [2.7].
[120] United Kingdom, Parliamentary Debates, House of Lords, 18 November 1997, col 535 (Lord Irvine, Lord Chancellor) (emphasis added). Consider also Lord Lester:
The courts will no doubt strive as far as is judicially possible to save legislation from having to be declared incompatible. ... The courts will do so by construing existing and future legislation as intended to provide the necessary safeguards to ensure fairness, proportionality and legal certainty as required by the convention.
United Kingdom, Parliamentary Debates, House of Lords, 3 November 1997, col 1240.
[121] United Kingdom, Parliamentary Debates, House of Commons, 3 June 1998, col 421–2 (Jack Straw, Secretary of State for the Home Department) (emphasis added). The government did not want to create a subjective interpretative test, so it avoided the ‘reasonable’ standard. Rather, it choose the term ‘possible’: ‘What is the possible interpretation? Let us look at this set of words and the possible interpretations’: at col 423.
[122] The Home Secretary stated that ‘it is not our intention that the courts, in applying [s 3], should contort the meaning of words to produce implausible or incredible meanings.’ United Kingdom, Parliamentary Debates, House of Commons, 3 June 1998, col 422 (Jack Straw, Secretary of State for the Home Department).
[123] Nor does a declaration affect the validity, continuing operation or enforcement of any subordinate legislation if (disregarding the possibility of revocation) primary legislation prevents removal of the incompatibility under s 3(2). Incompatible subordinate legislation will be held ultra vires unless the parent legislation requires the incompatibility. In other words, incompatible subordinate legislation will not stand unless Parliament, the primary legislator, has required the incompatibility in primary legislation. Incompatible laws cannot be sanctioned by a delegated law-maker, nor should incompatible laws bypass the approval of the legislature. This requirement also ensures that the courts do not indirectly undermine the will of Parliament. If the courts were empowered to strike down subordinate legislation that was supported by primary legislation, the courts would effectively be challenging the primary legislation. The Human Rights Act ensures that indirect, as well as direct, affronts to parliamentary sovereignty by the courts do not occur.
[124] Anthony Lester, ‘Taking Human Rights Seriously’ in Richard Gordon and Richard Wilmot-Smith (eds), Human Rights in the United Kingdom (1996), 99. See also Anthony Lester and David Pannick, ‘The Human Rights Act 1998’ in Lord Lester of Herne Hill and David Pannick (eds), Human Rights Law and Practice (1999) 15, 18.
[125] This was first outlined in the case of Hunter v Southam Inc [1984] 2 SCR 145, but the most often-quoted case on the point is R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295 (‘Big M Drug Mart Case’).
[126] Big M Drug Mart Case 1985 CANLII 69; [1985] 1 SCR 295, 344. Dickson J also identified sources that were to be used in interpretation as being the character and objectives of the Charter, its historical origins, the language of the specific right or freedom, and the meaning and purpose of other Charter rights textually associated with the right or freedom in question: at 344.
[127] Robert Sharpe, ‘The Impact of a Bill of Rights on the Role of the Judiciary: A Canadian Perspective’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 431, 445.
[128] [1986] 1 SCR 103, 138 citing Big M Drug Mart Case 1985 CANLII 69; [1985] 1 SCR 295, 352.
[129] R v Oakes [1986] 1 SCR 103, 139.
[130] This test was intended to ‘integrate a normative analysis of the fundamental values underlying Canada’s free and democratic society with a consistent and predictable method of balancing those fundamental values’: Leon Trakman, William Cole-Hamilton and Sean Gatien, ‘R v Oakes 1986–1997: Back to the Drawing Board’ (1998) 36 Osgoode Hall Law Journal 83, 93–4.
[131] R v Oakes [1986] 1 SCR 103, 138. The initial assessment of the importance of the object of the legislation anchors the proportionality test that follows. Objectives that are found to be pressing and substantial ‘provide a fixed reference point against which the reasonableness of alternate means can be measured and the weight of the restrictions on constitutional guarantees can be balanced and compared’: David Beatty, Talking Heads and the Supremes: The Canadian Production of Constitutional Review (1990), 180–1.
[132] R v Oakes [1986] 1 SCR 103, 139.
[133] Ibid.
[135] Ibid 889 (emphasis omitted). The Canadian courts have differentiated between the standard of justification required under s 1 in certain classes of cases, essentially only requiring a reasonable basis upon which to satisfy the proportionality test. This has happened in: non-criminal cases (eg McKinney v University of Guelph [1990] 3 SCR 229); cases where social and economic rights are at issue (eg McKinney v University of Guelph [1990] 3 SCR 229, 304–5); situations of competing individual rights, as opposed to individuals as against the state (eg A-G of Quebec v Irwin Toy Ltd [1989] 1 SCR 927); and when there are threats to the periphery of the right or freedom, as opposed to matters at the core of the right (eg A-G of Quebec v Irwin Toy Ltd (1989) 58 DLR (4th) 577). See generally Janet L Hiebert, ‘Policy Making in a Different Venue: Judicial Discretion, Normative Preferences and Uncertainty Masquerading as Principled, Objective Criteria’ (Paper presented at the Centre for Public Policy Workshop on The Changing Role of the Judiciary, Melbourne, 7 June 1996).
[136] For those in favour of the institutional dialogue argument, see Trakman, Cole-Hamilton and Gatien, above n 130; Hiebert, Limiting Rights, above n 55; Sharpe, above n 127; Martha Jackman, ‘Protecting Rights and Promoting Democracy: Judicial Review under Section 1 of the Charter’ (1996) 34 Osgoode Hall Law Journal 661. Of course, there is criticism of the Supreme Court’s use of s 1: see Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2nd ed, 2001) 38–42; Patrick Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (1987) 51–71.
[137] Peter Hogg and Allison 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 75.
[138] Ibid 82.
[139] Ibid 98.
[140] Ibid 79–80.
[141] Of the 13 cases without legislative sequels, two have been the subject of proposed legislation, and three were decided only within the last two years: ibid 97.
[142] Ibid.
[143] Out of the 52 cases that triggered a response, in 39 cases the response came within two years of the invalidation of the law (75 per cent); in nine cases the response came within two and five years (17 per cent); and in only four cases did the response take more than five years (8 per cent) (on two occasions it took the Quebec government over two years to respond to a judicial decision, and on another occasion it took more than five years): ibid 99.
[144] Ibid 81.
[145] Ibid 105 (citation omitted). Note also the response: Christopher Manfredi and James Kelly, ‘Six Degrees of Dialogue: A Response to Hogg and Bushell’ (1999) 37 Osgoode Hall Law Journal 513. Hogg and Bushell adequately respond to the criticisms of Manfredi and Kelly in Peter Hogg and Allison Thornton, ‘Reply to “Six Degrees of Dialogue”’ (1999) 37 Osgoode Hall Law Journal 529.
[146] Another feature of the Charter that facilitates dialogue is s 15 dealing with rights to equality. Usually laws that violate equality rights are under-inclusive, in that the group suffering the disadvantage has been excluded from the receipt of some benefit or protection. Legislatures typically respond by extending the benefit or protection of the law to the excluded group. Occasionally, the legislature decides to reduce the benefit or protection available to all groups, both those previously included and excluded. This latter response is equally valid, as the Charter equality rights accommodate ‘different legislative choices ... such that democratically elected bodies are still ultimately responsible for setting their own budgetary priorities, albeit in a way that does not discriminate against disadvantaged groups’: Hogg and Bushell, ‘The Charter Dialogue’, above n 137, 91. Hogg and Bushell also identify some factors that constrain the democratic process, but conclude that despite the constraints, the final decision is democratic. Some constraints are, for example, that before the Charter was introduced an issue may have gone untouched by the legislature for fear of electoral backlash. However, under the Charter, a court decision will force the legislature to act. In addition, the court decision may heavily influence the precise terms of the new legislation. Also, the legislature may have to account more for Charter values than it prefers to. See Hogg and Bushell, ‘The Charter Dialogue’, above n 137, 80.
[147] It will be recalled that a limitation will also need to be prescribed by law. This element tends to be of little consequence to this debate.
[148] Trakman, Cole-Hamilton and Gatien, above n 130, 95.
[149] Ibid 98.
[150] See above nn 128–9 and accompanying text.
[151] Trakman, Cole-Hamilton and Gatien, above n 130, 100.
[152] Ibid. Trakman, Cole-Hamilton and Gatien consider this unsatisfactory, because findings that the objectives are pressing and substantial, and that the law is the least restrictive means to achieve the objectives, do not prove that the benefits of the law outweigh its detriment: at 100–3.
[153] The constitutional norms ‘generally operate at the margins of legislative policy, affecting issues of process, enforcement, and standards, all of which can accommodate most legislative objectives’: Hogg and Thornton, above n 145, 534.
[154] See Hiebert, Limiting Rights, above n 55, 151–5; Sharpe, above n 127, 444–51; Jackman, above n 136, 675. According to Jackman, s 1 ‘provides a crucial opportunity to hold legislatures to account for decisions which result from majoritarian biases and other forms of malfunctioning within the political discourse’: at 680. Jackman also argues that reliance on the minimal impairment test under s 1 enhances democracy, by requiring ‘a rigorous and principled application of s 1 ... without prejudgment as to whether any particular degree of judicial deference is owing to any particular form of legislation’: at 680.
[155] David Beatty, ‘The Canadian Charter of Rights: Lessons and Laments’ in Gavin W Anderson (ed), Rights and Democracy: Essays in UK–Canadian Constitutionalism (1999) 10.
[156] Hiebert, Limiting Rights, above n 55, 155.
[157] Beatty, ‘Lessons and Laments’, above n 155, 26.
[158] Human Rights Act 1998 (UK) c 42, s 4(6). In other words, the judge must apply the incompatible law in the case at hand.
[159] Human Rights Act 1998 (UK) c 42, s 4(5). It also includes: the Judicial Committee of the Privy Council; the Court-Martial Appeal Court; in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; and, in England and Wales or Northern Ireland, the High Court or the Court of Appeal. ‘The power is so confined because of the constitutional importance of such a declaration, and also because the government did “not believe that [criminal] trials should be upset, or potentially upset, by declarations of incompatibility”’: Lester and Pannick, above n 124, 27, quoting United Kingdom, Parliamentary Debates, House of Lords, 18 November 1997, col 551 (Lord Irvine, Lord Chancellor). A decision by the High Court or Court of Appeal making, or refusing to make, a declaration of incompatibility will itself be subject to appeal: Human Rights White Paper (UK), above n 83, [2.9].
[160] Human Rights White Paper (UK), above n 83, [2.10].
[161] United Kingdom, Parliamentary Debates, House of Commons, 21 October 1998, col 1306 (Jack Straw, Secretary of State for the Home Department).
[162] Human Rights Act 1998 (UK) c 42, s 11.
[163] Human Rights White Paper (UK), above n 83, [2.13].
[164] Between October 2000 and March 2001, a total of 107 cases before the English and Welsh courts considered the Human Rights Act. In only three cases was a declaration of incompatibility made. Action taken under primary or subordinate legislation was found to be incompatible on four occasions. (A right to privacy has been developed under the existing common law confidentiality principles, and the Human Rights Act has been held to have a horizontal effect, that is, it effects the legal relationship between citizens, rather than just the vertical legal relationship between citizens and the state.) It is too early to draw conclusion from these figures, but they are interesting nonetheless. The Human Rights Act Research Unit at King’s College London is undertaking a monitoring task of all Human Rights Act decisions in the English and Welsh courts. The results are to be published periodically in the European Human Rights Law Review. The figures stated here are based on the two reviews published at the time of writing: Elena Martin Salgado and Claire O’Brien, ‘Table of Cases under the Human Rights Act’ (2001) 2 European Human Rights Law Review 181; Elena Martin Salgado and Claire O’Brien, ‘Table of Cases under the Human Rights Act’ (2001) 4 European Human Rights Law Review 376.
[165] It should be noted that ‘regular’ remedies are also available under the Human Rights Act 1998 (UK) c 42. Where a court finds that a public authority has acted unlawfully, it may grant such relief or remedy, or make such order, within its power, as it considers just and appropriate under s 8(1). The remedies that may be available in any forum include damages, injunctions, declarations, and/or relief by prerogative writ after judicial review (eg certiorari, mandamus or prohibition). Courts or tribunals with limited jurisdiction will be most affected by s 8(1). They will be powerless to award a remedy considered ‘just and appropriate’ and ‘necessary to afford just satisfaction’ if it is beyond their statutory jurisdiction: s 8.
[166] Human Rights Act 1998 (UK) c 42, s 10(2). In the case of subordinate legislation, if the Minister considers that it is necessary to amend the primary legislation under which the subordinate legislation was made in order to enable any incompatibility to be removed, and that there are compelling reasons for proceeding, the Minister may by order make such amendments to the primary legislation as are considered necessary under s 10(3).
[167] Section 10(1).
[168] In the situation where an appeal lies, a remedial order cannot be made until all persons who may appeal have stated in writing that they do not intend to do so, the time for bringing an appeal has expired and no appeal has been brought within that time, or an appeal brought within that time has been determined or abandoned, as per s 10(1)(a).
[169] This relates only to proceedings against the United Kingdom after the date of entry into force of s 10 of the Human Rights Act 1998 (UK) c 42 (2 October 2000). Moreover, it does not apply to European Court of Human Rights decisions pertaining to other contracting states. If the Court finds that legislation of another contracting state, which is in similar terms to British legislation, violates ECHR rights, the Parliament can only amend this legislation by normal means.
[170] Human Rights Act 1998 (UK) c 42, s 20(1).
[171] Further detail about remedial orders is contained in s 10 and sch 2 of the Human Rights Act 1998 (UK) c 42.
[172] Human Rights Act 1998 (UK) c 42, sch 2, ss 2(b) and 4(1).
[173] Human Rights Act 1998 (UK) c 42, sch 2, s 4(4).
[174] There are democratic difficulties with remedial measures, particularly the fast-track remedial measures. For instance, the fast-track measures sanction the use of ‘Henry VIII clauses’ (that is, the change of primary legislation by subordinate legislation). A further concern is the lack of consultation with the elected representatives in developing the response to a declaration of incompatibility. The remedial response process should be more refined to avoid these difficulties, but the length of this article prevents further discussion of this issue.
[175] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 52.
[176] Ibid. Section 24 also grants the judiciary remedial powers. Section 24(1) empowers the courts to give anyone whose rights or freedoms have been denied or infringed a remedy that is just and appropriate in the circumstances. Section 24(2) empowers a court to exclude evidence obtained in violation of the rights and freedoms in the Charter if to admit it would bring the administration of justice into disrepute. These remedies generally will not be invoked if s 52 has been engaged.
[178] Hogg and Bushell, ‘The Charter Dialogue’, above n 137, 96.
[179] Ibid.
[180] See above n 151 and accompanying text.
[181] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 33(2).
[182] Section 33(3)–(5).
[183] These are the democratic rights (ss 3–5), mobility rights (s 6) and language rights (ss 16–23).
[184] A-G (Quebec) v La Chaussure Brown’s Inc [1988] 2 SCR 712.
[185] Ines Molinaro, ‘The Charter and Quebec: Exploring the Limits of Constitutional Authority’ in Gavin Anderson (ed), Rights and Democracy: Essays in UK–Canadian Constitutionalism (1999) 139, 160.
[186] Peter Russell, ‘Canadian Constraints on Judicalisation from Without’ in C Neal Tate and Torbjorn Vallinder (eds), The Global Expansion of Judicial Power (1995) 137, 138.
[187] Tsvi Kahana, ‘The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter’ (2002) 44 Canadian Public Administration 255.
[188] This occurred in the language rights case of A-G (Quebec) v La Chaussure Brown’s Inc [1988] 2 SCR 712.
[189] Trakman, Cole-Hamilton and Gatien, above n 130, 95. Two examples where this has occurred are with the Lord’s Day Act, RSC 1970, c L-13 and the Canada Elections Act, SC 2000, c 9.
[190] Manfredi, above n 136, 22.
[191] Ibid.
[192] Ibid 195.
[193] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996) 332, 342; also see Ronald Dworkin, ‘Mr Liberty’ (book review of Learned Hand: The Man and the Judge by Gerald Gunther) (1994) 41(13) The New York Review 17, 20.
[194] Manfredi, above n 136, 199.
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