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Federal Law Review |
Julie Taylor[*]
In Ghaidan v Mendoza,1 the English Court of Appeal held that s 3 of the Human Rights Act 1998 (UK) c 42 required that a previously enacted UK statute be interpreted so as to preclude express or implied discrimination against same-sex couples, consistently with art 14 of the European Convention on Human Rights.2 The Court considered that s 2(2) of the Rent Act 1977 (UK) c 42, which referred to a person living with the original tenant
'as his or her wife or husband', should not be read to exclude same-sex couples. Buxton
LJ stated that the principle of deference to the will of Parliament did not assist in deciding the case.3 Section 2(2) was interpreted as applying to a person living with a tenant 'as if they were his or her wife or husband',4 despite the fact that the UK Parliament intended it to be restricted to partners of the opposite sex.
The position would be different, however, if the Commonwealth Parliament enacted a provision similar to the one under consideration in Ghaidan v Mendoza, despite the enactment of internationally recognised rights in the Sex Discrimination Act
1984 (Cth).5 The traditional doctrine of parliamentary supremacy would require
Australian courts to give effect to the later Act, even if it abrogated rights contained in
the Sex Discrimination Act. These different approaches to legislation that affects the
internationally recognised human right to freedom from discrimination6 highlight two
issues. First, what is the effect of parliamentary supremacy for human rights
protection? Secondly, to what extent are interpretation provisions, such as s 3 of the
Human Rights Act 1998 (UK), effective in providing or strengthening this protection?
This article examines these two issues. Part one considers the doctrine of parliamentary supremacy and the implications of this doctrine for human rights protection in Australia. Part two postulates some identifying characteristics of interpretation provisions. Part three compares the approach of courts to those provisions in Australia, the UK, Canada, and New Zealand. Part four argues that interpretation provisions in human rights statutes are not necessarily irreconcilable with parliamentary supremacy. Part four concludes that the High Court could hold subsequently enacted provisions that are inconsistent with an interpretation provision inoperative to the extent of the inconsistency.
I THE DOCTRINE OF PARLIAMENTARY SUPREMACY
The Commonwealth Parliament has used the external affairs power to enact human rights statutes such as the Racial Discrimination Act 1975 (Cth) and the Sex Discrimination Act 1984 (Cth). However, these are, like other Commonwealth statutes, capable of express or implied repeal by any subsequent Commonwealth statute. The external affairs power could also be used to enact a statutory Bill of Rights protecting internationally recognised human rights, but any such statute would be susceptible to express or implied repeal. Given that the possibility of entrenching a Commonwealth Bill of Rights or other human rights statutes through the s 128 Commonwealth Constitution amendment process appears unlikely,7 parliamentary supremacy, and associated rules of statutory interpretation and implied repeal, constitute significant obstacles to the effective protection of human rights.
Truly effective protection of human rights would compete with the doctrine of parliamentary supremacy, if that protection were to limit Australian Parliaments' legislative power. Parliamentary supremacy continues to affect the development of Australian constitutional law.8 In Kable v Director of Public Prosecutions, which
considered the validity of State legislation, Dawson J stated that 'there can be no doubt
that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.'9 In Kartinyeri v Commonwealth,[10]
Brennan CJ and McHugh J quoted traditional expositions of parliamentary sovereignty
in relation to the Commonwealth Parliament, when referring to that Parliament's power to make and unmake any law.[11]
Concepts of parliamentary supremacy and sovereignty are related but the terms are rarely defined with precision.12 Parliamentary sovereignty is an amorphous concept, in both Australia and the UK.13 Dicey described the traditional doctrine of parliamentary sovereignty in the following terms:14 '[The] Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever ... [and] ... no
person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.' It has also been suggested that parliamentary sovereignty includes a requirement that, in a case of conflict between two Acts of parliament, the later repeals the earlier.[15]
It has been suggested that the principle developed in the UK in the seventeenth
century was not one of parliamentary sovereignty but rather parliamentary supremacy,
that is, that the UK Parliament's position is supreme relative to the executive and judicial organs of government.16 Parliamentary sovereignty goes further than parliamentary supremacy because the former doctrine provides that parliament can
'make or unmake any law whatever'.17 Commonwealth and State Parliaments in
Australia are not 'sovereign', in this sense, because their powers are limited by the
Commonwealth Constitution. In the case of State Parliaments, legislative power is also
limited by statutes enacted by the Commonwealth Parliament by virtue of s 109 of the
Commonwealth Constitution.
Commentators have been perplexed by the relationship between parliamentary supremacy and manner and form provisions. Manner and form provisions are provisions enacted by one parliament to bind a future parliament. An example is s 13
of the Electoral Distribution Act 1947 (WA), which provides, inter alia, that it is not lawful to present any bill that amends the Electoral Distribution Act 1947 to the Governor for Her Majesty's assent, unless the second and third readings of such bill shall have been passed with the concurrence of an absolute majority of the Legislative Council and the Legislative Assembly respectively.18 Manner and form provisions enacted by State Parliaments are binding in relation to subsequent laws with respect to the 'constitution, powers, and procedures' of Parliament, because of s 6 of the Australia Act 1986 (Cth).19 It has also been suggested that manner and form provisions might be binding outside of these circumstances,20 on the basis of s 106 of the Commonwealth Constitution,21 or principles enunciated in Harris v Minister for the Interior22 and Bribery Commissioner v Ranasinghe.23 In the latter case, the Privy Council advised that 'a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law.'[24]
A truly supreme and sovereign parliament would be able to make any law,
including a law that binds future parliaments, without the judiciary being able to strike
it down. If parliament is bound by the laws of its predecessor, it is not 'supreme' or
'sovereign' in this sense. The traditional UK doctrine of parliamentary sovereignty
therefore provides that the UK Parliament cannot entrench legislation. Legislation
protecting human rights could be enacted, but would be susceptible to express or
implied repeal by subsequent legislation. On this view, the only limit to the UK
Parliament's legal power is that it cannot detract from its own continuing legislative power.25 Later interpretations of parliamentary sovereignty, such as Professor Heuston's 'new view', suggest that the UK Parliament can alter the rules by which courts identify laws. In other words, Parliament can change the procedure by which legislative power is exercised.[26]
It is unclear which of these interpretations of parliamentary sovereignty, if any, has had the most influence in Australia. In Attorney-General (NSW) v Trethowan,27 the majority held that the NSW Parliament could bind its successor with respect to the procedure by which laws must be passed.28 The majority, comprised of Rich, Starke, and Dixon JJ, upheld the legal effectiveness of s 7A of the Constitution Act 1902 (NSW),
a manner and form provision requiring a referendum to abolish the Legislative Council or repeal s 7A itself. This might have represented an acceptance of the 'new view' interpretation of parliamentary sovereignty, if the majority did not base its decision on s 5 of the Colonial Laws Validity Act 1865 (Imp) (now replaced by s 6 of the Australia Acts 1986 (Cth and UK)).29 This highlights an important difference between the application of parliamentary sovereignty to Australian Parliaments and the UK Parliament: all Australian Parliaments are limited by the Commonwealth Constitution, and State Parliaments are limited by Commonwealth laws made under it (such as the Australia Act 1986 (Cth)). Therefore, in Attorney-General (WA) v Marquet, the majority stated that it was not necessary to resolve 'the conundrum of whether a body given general power to legislate can give up part of that power' because, by federal law,
effect must be given to some manner and form provisions enacted by State
Parliaments.30
There is no provision equivalent to s 6 of the Australia Act 1986 (Cth) that gives the
Commonwealth Parliament power to bind successor Commonwealth Parliaments, and
it is unlikely that the Commonwealth Parliament can enact manner and form
provisions outside of the referendum procedure in s 128 of the Commonwealth Constitution.31 Sections 23 and 40 of the Commonwealth Constitution provide that questions in the House of Representatives and the Senate 'shall be determined by a majority of votes', and s 128 provides: 'This Constitution shall not be altered except in the following manner'.32 However, statutory interpretation provisions would not offend these provisions of the Commonwealth Constitution, and might provide a means
of at least partially 'entrenching' a Bill of Rights in Australia.
II CHARACTERISTICS OF INTERPRETATION PROVISIONS
Interpretation provisions might provide a means for the Commonwealth Parliament to protect human rights statutes (such as the Sex Discrimination Act 1984 (Cth) or Racial Discrimination Act 1975 (Cth)) against subsequent implied repeal, or to enact a partially entrenched Australian Bill of Rights.33 Interpretation provisions have been used in other common law jurisdictions to protect human rights statutes, in the UK, Canada, and New Zealand. A common example is a provision directing that future statutes shall be interpreted not to derogate from internationally recognised human rights. Examples are s 2(4) of the European Communities Act 1972 (UK), s 3 of the Human Rights Act 1998 (UK), s 2 of the Canadian Bill of Rights, SC 1960, c 44 ('Canadian Bill of Rights') and s 6 of the Bill of Rights Act 1990 (NZ). These interpretation provisions, considered
in more detail below, have in common two characteristics.
First, interpretation provisions contain words that direct courts in how to interpret subsequently enacted statutes, such as 'shall be construed and have effect',34 'must be read and given effect',35 or 'be so construed and applied',36 in a way that is consistent with the law to which the interpretation provision refers. An alternative form of interpretation provision, with the same effect, might direct that a meaning consistent with the interpretation provision 'shall be preferred to any other meaning'.37 These terms have led some commentators to refer to provisions in several jurisdictions as
'disapplication clauses'.38 This is because those provisions operate so that, as a matter
of statutory construction, a later statute does not operate or apply according to its own
terms. The term 'disapplication' is used because a later statute that is inconsistent with
the interpretation provision or disapplication clause is inoperative to the extent of the
inconsistency. This contrasts with the effect of a putative law not passed in conformity with binding manner and form provisions. In Australia,39 Canada,40 and perhaps New Zealand,41 the effect of non-compliance with a manner and form provision is that the later provision is invalid.[42]
Secondly, interpretation provisions may be repealed by express words. Some interpretation provisions, such as s 2 of the Canadian Bill of Rights and s 6 of the Real Property Act 1886 (SA), provide, respectively, that parliament must declare that a later inconsistent enactment is to operate or apply 'notwithstanding the Canadian Bill of Rights' or 'notwithstanding the provisions of [this Act]'. Other provisions, such as s 3 of the Human Rights Act 1998 (UK) and s 6 of the Bill of Rights Act 1990 (NZ), do not provide any such 'magic formula',43 but provide that courts are to prefer an interpretation of a later statute that is consistent with the earlier human rights provision wherever it is possible. It is therefore always open to parliament to legislate inconsistently with the interpretation provision, and a court would be bound to declare later inconsistent legislation, clearly expressed, to be fully operative according to the natural meaning of its terms.
In Australia, several bills have been introduced which would use interpretation provisions to protect human rights statutes. In the Commonwealth Parliament, cll 5(2) and 5(3) of the Human Rights Bill 1973 (Cth),44 cll 8(1) and 8(2) of the Parliamentary Charter of Rights and Freedoms Bill 2001 (Cth),45 and cll 8(1) and 8(2) of the Australian
Bill of Rights Bill 2001 (Cth)46 are examples of interpretation provisions which would
protect rights provisions from implied repeal by subsequent statutes. All of these bills contained interpretation clauses in substantially the same terms.47 Clause 5(2) of the Human Rights Bill 1973 (Cth) provided:
Subject to sub-section (3), any provision of a law of Australia or of a Territory, whether passed or made before, on or after the commencing day, that is inconsistent with a provision of this Act does not, to the extent of the inconsistency, have any force or effect.
Clause 5(3) provided: 'Sub-section (2) does not apply in relation to a provision of a law if an Act expressly declares that that provision shall operate notwithstanding this Act.'
Read together with cl 5(3), cl 5(2) of the Human Rights Bill 1973 (Cth) can be characterised as an interpretation provision according to these criteria. First, cl 5(2) refers to an inconsistent Act being without 'any force or effect' to the extent of the inconsistency, rather than using the words 'shall not apply' or 'shall not operate' in a way inconsistent with the Act.48 However, by enacting cl 5(2), the Commonwealth Parliament apparently intended that courts decline to apply later inconsistent Commonwealth enactments, unless cl 5(3) applies. Clause 5(2) appears to envisage that inconsistent legislation will operate to the extent it is consistent with the earlier Act, rather than being declared invalid. Secondly, cl 5(2), in terms similar to s 2 of the Canadian Bill of Rights and s 6 of the Real Property Act 1886 (SA), provides that later Commonwealth Acts may expressly repeal cl 5(3).
Another Australian example is the Human Rights Act 2004 (ACT).49 Section 30(1) provides: 'In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.' This provision is an interpretation clause. It directs courts in how to interpret subsequently enacted statutes, and may be repealed by express words. Section 30(2) limits the operation of
s 30(1). Under s 30(2), if application of s 139 of the Legislation Act 2001 (ACT) (requiring
that Territory laws must be interpreted in a way that best achieves the purpose of the
Act) and application of s 30(1) of the Human Rights Act 2004 (ACT) would give a
different result, only the former is to be applied. Section 30 was intended to operate so
that, where there is a choice between two interpretations and both interpretations best
achieve the purpose of the statute or statutory instrument, the interpretation that is consistent with human rights must prevail.50 If an interpretation that is consistent with human rights would have the effect of defeating the obvious purpose of the statute or statutory instrument, s 30(2) requires that the interpretation that is consistent with human rights will not prevail.[51]
The High Court of Australia considered an interpretation provision that did not involve human rights provisions in South-Eastern Drainage Board (South Australia) v Savings Bank of South Australia,52 and concluded that the interpretation provision was impliedly repealed by subsequently enacted inconsistent legislation. The approach to interpretation provisions in Canada, the UK, and New Zealand differs from the South- Eastern Drainage Board approach. Of course, these jurisdictions have different constitutional arrangements. In particular, Canada differs from the UK and New Zealand because Canada is, like Australia, a federation. In a federation, courts declare legislation invalid (for example, because it is enacted without legislative power).53 In contrast, questions of 'validity' of legislation are rarely, if ever, raised in the UK and New Zealand courts.54 However, as interpretation provisions do not require courts to declare legislation invalid, the approaches of these jurisdictions are comparable.[55]
A High Court of Australia
South-Eastern Drainage Board suggests that interpretation provisions do not bind
Australian Parliaments.56 This is because, based on principles of parliamentary
supremacy and statutory interpretation, later expressions of Parliament's will prevail
over earlier provisions, unless the later provision is more general than a former specific
provision. On this approach, interpretation provisions would not be legally effective to
protect a Commonwealth Bill of Rights from implied repeal by subsequent
Commonwealth legislation. In this sense, as the High Court indicated in South-Eastern
Drainage Board, interpretation provisions are different from manner and form
provisions. The latter lay down special procedures that must be followed for repeal of
a protected provision and which derive their binding force from s 6 of the Australia Act
1986 (Cth)57 or, perhaps, according to principles in Harris v Minister for the Interior58
and Bribery Commissioner v Ranasinghe.59
The provision under consideration in South-Eastern Drainage Board was s 6 of the Real Property Act 1886 (SA), which provided: 'No law, so far as inconsistent with this Act, shall apply to land subject to ... this Act — nor shall any future law, so far as inconsistent with this Act, so apply unless it shall be expressly enacted that it shall so apply "notwithstanding the provisions of The Real Property Act 1886".' The Real Property Act was the South Australian Torrens statute. It provided that, subject to certain specified exceptions in the Act, the registered proprietor of a first mortgage takes priority over all other estates and interests in the land not notified on the certificate of title. The case arose because s 14 of the South-Eastern Drainage Amendment Act 1900 (SA) provided that drainage construction costs apportioned to a landowner under the Act would be a first charge on the land, and s 65 of the South-Eastern Drainage Act 1926 (SA) and s 66 of the South-Eastern Drainage Act 1931 (SA) provided that unpaid maintenance rates would also be a first charge. The Savings Bank of South Australia was granted a mortgage by the registered proprietor, which was registered under the Real Property Act. The issue was whether s 6 of the Real Property Act rendered the later 1900, 1926 and 1931 provisions inapplicable.
Dixon and McTiernan JJ held that s 6 of the Real Property Act was a mere interpretation provision, not a binding manner and form provision. Section 6 was therefore impliedly repealed by the subsequent legislation.60 Similarly, Latham CJ held that the interpretation provision was not a manner and form provision, and, applying accepted principles of statutory interpretation, held that where a later provision was inconsistent with an earlier provision, the later prevailed. Evatt J explicitly stated that
s 6 was not a 'mere interpretation section'. In his view, s 6 did not come within the principles enunciated in Attorney-General (NSW) v Trethowan,61 and was therefore legally ineffective.62 Finally, Starke J also held that s 6 was not a manner and form provision. Starke J emphasised a different rule of statutory interpretation, finding that, despite the interpretation provision, the specific provisions in the later Acts prevailed over the more general provisions in the Real Property Act.[63]
B Other common law jurisdictions
Canada
In Canada, there are numerous examples of interpretation provisions in federal and provincial human rights Acts.64 The first of these provisions to be judicially considered was s 2 of the Canadian Bill of Rights. Section 2 provides that a later inconsistent Act
'shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not
to abrogate or abridge or infringe ... any of the rights or freedoms herein recognised and declared'.[65]
Since the enactment of the Canadian Bill of Rights, the Canadian Charter of Rights and Freedoms 1982 ('Charter') has been enacted. The Charter forms Part I of the Constitution Act 1982 (UK) and mirrors most of the guarantees in the Canadian Bill of Rights. However, the latter has not been repealed. Indeed, several provisions in the Canadian Bill of Rights which go beyond those in the Charter continue to be effective.66 Any law inconsistent with the Charter is, to the extent of the inconsistency, of no force and effect: Constitution Act 1982 (UK) s 52(1). Section 33 of the Charter has a clause providing that Parliament (federal or provincial) may legislate inconsistently if the Parliament declares that Act is to operate notwithstanding the Charter.67 Section 52(1) might also
be viewed as an interpretation provision. However, the Charter derives its binding force from the fact that it is contained in the Constitution Act 1982, a UK statute. Consequently, s 2 of the Canadian Bill of Rights makes a more interesting comparison with Acts of the Commonwealth Parliament, because s 2 was enacted by a Parliament
in a federal system and purports to affect the interpretation of later statutes enacted by the same Parliament.
In R v Drybones, s 2 was held to require that a Canadian law that could not be sensibly construed so as not to abrogate the rights and freedoms recognised in the Canadian Bill of Rights was inoperative to the extent of the inconsistency, unless expressly declared to operate notwithstanding the Canadian Bill of Rights.68 Therefore,
s 94(b) of the Indian Act, RSC 1952, c 149 ('the Indian Act 1952'), which was inconsistent
with a requirement in s 1(b) of the Canadian Bill of Rights of 'equality before the law',
was inoperative to the extent of the inconsistency.
Although Drybones was concerned with a 1952 federal statute enacted before the Canadian Bill of Rights 1960, it is likely that the Canadian Supreme Court would have reached the same result if that 1952 statute had been enacted after the Canadian Bill of Rights. This was the approach of Beetz J in Singh v Minister of Employment and Immigration.69 The Supreme Court considered whether persons who claimed to be refugees were entitled to an oral hearing before a government official, contrary to the Immigration Act RSC 1976, c 52 ('Immigration Act 1976'). The majority held the Immigration Act 1976 provisions were inconsistent with the right to 'life, liberty and security of person' under s 7 of the Canadian Charter of Rights and Freedoms 1982.[70]
However, Beetz J, with whom Estey and McIntyre JJ agreed, relied upon Drybones and held that the 1976 provisions were 'inoperative' to the extent that they were inconsistent with s 2(e) of the Canadian Bill of Rights 1960,71 which afforded a right to a fair hearing whenever there was federal power to determine a person's 'rights and obligations'.72 Beetz J expressly stated that he did not see any reason not to apply the principle in Drybones to a federal statutory provision enacted after the Canadian Bill of Rights 1960.73 Beetz J's approach in Singh and the Supreme Court's decision in Drybones were subsequently followed by the Court of Appeal in MacBain v Lederman.[74]
Human Rights statutes in the United Kingdom
In the UK, s 2(4) of the European Communities Act 1972 (UK) and s 3 of the Human Rights Act 1998 (UK) can both be categorised as interpretation provisions.75 These provisions have been upheld by the House of Lords as a legally effective means of implementing European Community law, especially the European Convention on Human Rights.[76]
Section 2(4) of the European Communities Act 1972 subjects the legal effectiveness of all future legislation in the UK to the provisions of s 2(1), providing: 'any enactment passed or to be passed... shall be construed and have effect subject to the foregoing provisions of this section'. Section 2(1) gives the force of domestic law to present and future Community law that is required by various European Union treaties to be given
69 [1985] 1 SCR 177 ('Singh').
).
effect in a member country without further domestic legislative enactment. In R v
Secretary of State for Transport; Ex parte Factortame Ltd (No 2),77 the House of Lords
upheld the effectiveness of s 2(4) of the European Communities Act 1972 against the
subsequently enacted Merchant Shipping Act 1988 (UK) c 12.
Section 2(4) is an interpretation provision, or disapplication clause, because it instructs courts in how to interpret later statutes. Section 3 of the Human Rights Act
1998 (UK) is similar: '(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights...'. Higher courts that cannot interpret UK legislation consistently with the Convention rights are empowered to make a 'declaration of incompatibility' under s 4 of the Human Rights Act 1998.78 Following such a declaration, the UK government may amend or repeal the offending statute by a remedial order, which must be approved by resolution of each House of Parliament. In urgent cases, a minister can make the order and then seek approval.79 The UK Parliament is not, however, obliged to amend or repeal legislation the subject of such a judicial declaration.
In this context, UK jurisprudence illustrates the difficulty in striking a balance between three factors: the 1998 Parliament's intention in enacting s 3; the rights contained in the European Convention on Human Rights; and the contemporary Parliament's intention. In R v A (No 2),80 the House of Lords considered whether s 41 of the Youth Justice and Criminal Evidence Act 1999 (UK) c 23, which precluded evidence about sexual behaviour of a complainant in sexual assault cases except with leave of the Court, was inconsistent with the right to a fair trial preserved under art 6 of the Convention. Lord Steyn considered what he termed an 'interpretative obligation' or
'duty' upon Courts under s 3(1) of the Human Rights Act 1998, requiring that, 'so far as
it is possible to do so, primary legislation ... must be read and given effect in a way which is compatible with the Convention rights'.81 He considered this obligation applied 'even if there is no ambiguity in the language in the sense of the language being capable of two different meanings', and might require the UK Court 'to adopt an interpretation which linguistically may appear strained.'82 On the other hand, Lord Hope placed greater emphasis on deference to the intention of Parliament. He was of the view that s 3 does not permit courts to adopt an interpretation of legislation that contradicts the plain intention of the UK Parliament in order to construe legislation consistently with the Convention.[83]
Later House of Lords decisions have adopted an approach in line with Lord Hope's
view.84 These cases emphasise that courts should not 'overrule decisions which the
language of the statute shows have been taken on the very point at issue by the legislator'.85 The importance of tenets closely linked with parliamentary supremacy can be seen in the courts' concept of deference to the will of the UK Parliament, a concept which judges often refer to when addressing s 3 of the Human Rights Act
1998.86 Notwithstanding this, in Ghaidan v Mendoza,87 Buxton LJ stated that 'issues of
discrimination ... do have high constitutional importance, and are issues that the courts should not shrink from',88 and that '[i]n such cases deference [to the will of Parliament] has only a minor role to play.'89 This accords with another decision, in which the House of Lords noted that certain basic individual rights should not be capable in any circumstances of being overridden, and that an independent and impartial tribunal was necessary to decide whether the UK legislation infringed the right in question.[90]
New Zealand
New Zealand has also used interpretation provisions to protect human rights. Section
6 of the Bill of Rights Act 1990 (NZ) provides: 'Wherever an enactment can be given a
meaning that is consistent with the rights and freedoms contained in this Bill of Rights,
that meaning shall be preferred to any other meaning.'
Section 6 must be read with s 4 of the Act, which was apparently enacted to protect parliamentary supremacy.91 It provides:
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights),
(a) Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
(b) Decline to apply any provision of the enactment —
by reason only that the provision is inconsistent with any provision of this Bill of Rights.
The Bill of Rights Act has been criticised because of a perceived conflict between ss 6
and 4.92 This criticism highlights the perceived difficulty in reconciling parliamentary
supremacy and effective human rights protection.93 Indeed, the legal and constitutional effect of ss 4 and 6 remains unclear. In R v Pora,94 the Court of Appeal
considered s 2(4) of the Criminal Justice Amendment Act (No 2) 1999 (NZ), which retrospectively raised minimum penalties for home invasions by amending s 80 of the Criminal Justice Act 1985 (NZ). Section 2(4) was inconsistent with s 4(2) of the Criminal Justice Act 1985 (NZ), which provided that no Court should have power 'to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence'. The principle of non-retrospectivity is also contained in ss 25(g) and 26 of the Bill of Rights Act.
The Court unanimously held that the minimum sentence under consideration should be quashed. A majority of the Court reached this conclusion on the ground that, properly construed, s 80 did not apply to offences committed before 1 September
1993, that is, before the power to order minimum penalties came into existence. All of the judges except Richardson P made broader observations as to whether s 80 could have any retrospective effect at all, in light of the Bill of Rights Act. Of the judges that considered the issue, the Court was split three to three over whether s 2(4) of the Criminal Justice Amendment Act (No 2) 1999 (NZ) should be read down so as not to conflict with the principle of non-retrospectivity in s 4(2) of the Criminal Justice Act 1985
(NZ) and ss 25(g) and 26 of the Bill of Rights Act.95 Elias CJ, Tipping and Thomas JJ
would have held that s 2(4) should be read down in this way, and that s 4(2) of the
1985 Act prevailed over s 2(4) of the 1999 Act.96 Elias CJ, with whom Tipping J agreed,
noted that the Bill of Rights Act required her to prefer an interpretation of s 2(4) that was consistent with the rights in the Act.97 Gault, Keith and McGrath JJ considered that the New Zealand Parliament intended the subsequent provision to operate inconsistently with the Bill of Rights Act, and this intention was so plain that the breach could not be removed by judicial interpretation.[98]
IV INTERPRETATION PROVISIONS AND HUMAN RIGHTS
PROTECTION IN AUSTRALIA
A Interpretation provisions and parliamentary supremacy
Do interpretation provisions conflict with the doctrine of parliamentary supremacy? This question has different answers depending on how parliamentary supremacy is interpreted.
The question is often analysed in terms of parliamentary sovereignty. Professor Wade has argued that Factortame altered the doctrine of parliamentary sovereignty and therefore the UK constitutional grundnorm, and consequently that Factortame amounted to a constitutional revolution.99 This is because, according to Professor Wade's traditional view, the doctrine of implied repeal is a necessary tenet of UK parliamentary sovereignty. The argument is that Parliament is not sovereign if judges are required to give effect to previously enacted interpretation provisions over subsequent, unambiguous expressions of Parliament's will. On the other hand, several commentators emphasise the fact that, in spite of s 3 of the Human Rights Act 1998
(UK), the UK Parliament retains power to overcome interpretation provisions by clear and unambiguous language. In that sense, interpretation provisions are consistent with parliamentary sovereignty.100 This analysis accords with the 'new view' of parliamentary sovereignty, which allows a parliament to prescribe the form of legislation of future parliaments, provided always that Parliament cannot abdicate substantive legislative power.
Andrew Butler argues that interpretation provisions are consistent with parliamentary sovereignty because they involve parliament making a direction as to how statutes are to be interpreted, and at the same time retaining the power to override the court's interpretation.101 He describes parliamentary sovereignty in New Zealand as 'the principle that Parliament ... has the ultimate power to determine what will and will not be law.'102 In fact, this description of parliamentary sovereignty is similar to the description of parliamentary supremacy in this article. For example, subject to written constitutional provisions, the fundamental requirement of
parliamentary supremacy is that courts must give effect to Parliament's most recently expressed intention. Unlike some formulations of parliamentary sovereignty,
parliamentary supremacy does not require a strict application of the doctrine of
implied repeal, and can accommodate interpretation provisions which limit the
operation of later inconsistent statutes until Parliament expressly repeals the
interpretation provision.
In addition, where there is an interpretation provision relating to protection of human rights, it is reasonable to presume that Parliament does not intend to abrogate human rights except by express statement.103 This is consistent with the approach of the Supreme Court of Canada, which has given statutes protecting human rights a character more 'fundamental' than other statutes. In Winnipeg School Division No 1 v Craton,104 the Supreme Court considered inconsistency between two pieces of Manitoba legislation. Section 50 of the Public Schools Act, SM 1980, c 33, mandated retirement of certain employees at age 65, and s 6(1) of the Human Rights Act, SM 1974,
c 65, prohibited employers from discriminating on the grounds of age. The Supreme Court held that the earlier Human Rights Act 1974 prevailed over the later Public Schools Act 1980. McIntyre J stated that although human rights legislation is not constitutional
in the sense that it is not capable of amendment or repeal, it is, however, 'of such
nature that it may not be altered, amended, or repealed nor may exceptions be made to
its provisions, save by clear legislative pronouncement.' The Court emphasised that to
allow implied repeal by later statutory enactment would be 'to rob [the human rights statute] of its special nature and give scant protection to the rights its proclaims.'[105]
This is not a position that has been adopted by the High Court of Australia, however, McIntyre J's reasoning supports the proposition that interpretation provisions excluding implied repeal of human rights statutes are consistent with parliamentary supremacy.
Similarly, it has been suggested that, according to established principles of statutory interpretation, courts will not impute to parliament an intention to abrogate
or curtail fundamental rights or freedoms except by unmistakable and unambiguous language.106 Courts require a clear indication that Parliament has directed its attention
to the rights or freedoms in question and has consciously decided upon abrogation or curtailment.107 This might suggest that interpretation provisions are unnecessary to exclude implied repeal of human rights statutes, because clear and unambiguous language will always be required to abrogate human rights. However, when construing Parliament's intention, a previously enacted interpretation provision that protects human rights would strengthen this presumption that Parliament does not generally intend to repeal statutory human rights protection except by the clearest of words. At the very least, the existence of such a presumption supports the proposition that interpretation clauses that protect human rights are not contrary to parliamentary supremacy.
74 Federal Law Review Volume 32
B Australian courts' ability to rule provisions 'inoperative'
As previously discussed, the High Court would have to depart from South-Eastern Drainage Board to uphold interpretation provisions in Australia. However, this would not be a radical step. First, several of the earlier English cases108 relied upon in South- Eastern Drainage Board might now be doubted in light of the House of Lords' decision
in Factortame.109 Secondly, commentators have criticised South-Eastern Drainage
Board,110 largely because the High Court characterised s 6 of the Real Property Act 1886
(SA), rather than the later 1900, 1926 and 1931 statutes, when addressing the
requirement that Parliament comply with manner and form provisions when legislating with respect to the 'constitution, powers, and procedures of Parliament'.[111]
Thirdly, as previously discussed, there already exists in Australia a presumption that Parliament does not intend to abrogate fundamental human rights except by clear and express words. An interpretation provision that protected internationally recognised human rights would be consistent with this presumption. Parliament would be presumed to know of the existence of the previously enacted interpretation provision, and not to have intended to legislate inconsistently with the human rights it protected. The same presumption would not necessarily apply to interpretation provisions not protecting human rights, such as s 6 of the Real Property Act 1886 (SA), which was held to be ineffective in South-Eastern Drainage Board.[112]
C Problems with upholding interpretation provisions as effective
There are three criticisms that might be made of the approach suggested by this article. First, if the High Court were to hold that interpretation provisions do bind later Parliaments, it would be important that there be some limits on judges' ability to
'disapply' laws of a later Parliament that are inconsistent with a previously enacted interpretation provision when the terms of the subsequent statute are clear and
unambiguous. It might be viewed contrary to principles of representative democracy for judges to refuse to apply clearly worded subsequent legislation.113 However, the approach in the UK, Canada and New Zealand, outlined above, suggests that this will not necessarily be the case. As pointed out by Lord Irvine of Lairg in the context of UK courts' role under s 3 of the Human Rights Act 1998 (UK), courts must carefully
scrutinise legislation while also giving due deference to elected decision-makers'
policy-making role.114 A balance must be struck between the importance of giving
effect to the will of Parliament, and avoiding infringement or abrogation of individual
or minority rights. Additionally, this criticism is weakened by the fact that
interpretation provisions are always susceptible to repeal by express legislation
enacted by standard legislative processes.
Secondly, it is difficult for judges to decide how far they can deviate from the Parliament's intention when reading later legislation and rendering it 'inoperative', before the later provision is held to repeal the previously enacted interpretation provisions or the related substantive provisions. The recent UK and New Zealand cases, discussed above,115 make it clear that these are questions upon which opinions differ, and this impedes judicial certainty. However, the UK experience also illustrates that this criticism is not insurmountable and that interpretation provisions can provide protection for human rights without politicising the courts or usurping the role of Parliament.116 Ultimately, if Parliament is to take human rights protection seriously, it
is likely to have some impact on judicial certainty, at least until such time as a body of precedent accumulates.
Thirdly, it might be argued that the difficulty in distinguishing between interpretation provisions and manner and form provisions presents a problem for the approach this article suggests. Indeed, when the High Court referred to interpretation provisions in South-Eastern Drainage Board, it was to distinguish between binding manner and form provisions, and provisions which did not fall into that category, which were 'mere' interpretation provisions. The High Court seemed to suggest that the only way one Parliament could bind its successor was to enact a manner and form provision which had binding effect by virtue of s 5 of the Colonial Laws Validity Act
1865 (Imp), now s 6 of the Australia Act 1986 (Cth).
Professor Peter Hogg argues that Drybones can only be explained by reference to the principle in Bribery Commissioner v Ranasinghe and the basis upon which manner and form provisions bind future Parliaments.117 He perceives a difficulty with reconciling Drybones with the orthodox doctrine of parliamentary supremacy, which he states requires that the later, more specific statute impliedly repeals the earlier Bill of Rights.
In his view, the only way one Parliament can bind a successor is by enacting manner and form provisions. This argument cannot be accepted. Unlike manner and form provisions, interpretation provisions do not bind later Parliaments, which are free to repeal them by express words in statutes enacted by standard legislative procedures. The Supreme Court of Canada considers the legal effect of interpretation provisions and manner and form provisions to be different. That Court has held that manner and form provisions invalidate later laws that do not comply with the manner and form
provision.118 That result is different from the Drybones approach to interpretation provisions.[119]
As Professor Hogg notes, Ritchie J suggests that interpretation provisions do not render later statutes invalid. Rather, those earlier interpretation provisions render subsequent provisions inoperative to the extent of the inconsistency. Professor Hogg criticises Ritchie J's decision that the Canadian Bill of Rights rendered the Indian Act 1952 inoperative, rather than invalid. This article argues that Ritchie J was correct.[120]
Interpretation provisions, such as s 2 of the Canadian Bill of Rights, do not, on their terms, purport to invalidate subsequent legislation. This is important because Parliament retains the power to repeal the interpretation provision by express words and by standard legislative procedures. A statute enacted after an interpretation provision, which is inoperative in some way, would revive if the interpretation provision were expressly repealed by a later statute.121 In contrast, manner and form provisions render all later laws that do not comply with the manner and form requirements invalid. Manner and form provisions allow the legislative will of an earlier Parliament that enacts a manner and form provision, by standard procedures, to bind future Parliaments to a more onerous legislative procedure (such as an absolute majority or referendum).122 This competition between the legislative wills of earlier and later Parliaments does not arise with interpretation provisions.
Classification of a provision as an interpretation provision or a manner and form provision has significant consequences in Australia. As earlier discussed,123 it is arguable that the Commonwealth Parliament does not have the legislative power to enact manner and form provisions because s 6 of the Australia Act 1986 (Cth) only applies to State Parliaments. There is only limited High Court obiter dicta supporting principles discussed in Harris v Minister for the Interior124 and Bribery Commissioner v Ranasinghe,125 which might provide a basis upon which the Commonwealth Parliament might bind its successor Parliament.126 These principles have not been conclusively adopted by the High Court of Australia.127 However, it is suggested that
the Commonwealth Parliament has constitutional power partially to entrench human
rights provisions using an interpretation provision, but not a manner and form
provision.
Interpretation provisions could be used to strengthen protection of human rights in existing statutes implementing and protecting human rights that are the subject of international concern, such as the Sex Discrimination Act 1984 (Cth) or the Racial Discrimination Act 1975 (Cth), or to implement a statutory Bill of Rights.128 In this way, interpretation provisions would provide greater protection for internationally recognised human rights in Australia. This protection would be compatible with the doctrine of parliamentary supremacy, which allows Parliament expressly to repeal the interpretation provision or the statutory protection of human rights.
Interpretation provisions might prove to be an important tool to consolidate human rights protection in Australia.129 Of course, this interpretation provision proposal is limited, but it would have important advantages. One advantage is that interpretation provisions in human rights statutes can create a relationship of 'democratic dialogue' between the court and the legislature, where judicial decisions cause public debate in which human rights assume a more prominent role than they otherwise might.[130]
Another advantage is that, if it attempted to abrogate human rights, the Commonwealth Parliament would be required to do so openly and expressly, hence exposing its legislation and motivation to public scrutiny.131 In this way, in the absence
of a Commonwealth Bill of Rights, interpretation provisions could significantly strengthen the effectiveness of human rights statutes in Australia.
* BA (Asian Studies), LLB (Hons), University of Western Australia. The author thanks Jim
Thomson, George Winterton, and the anonymous referees for comments on earlier drafts.
[1] [2002] EWCA Civ 1533; [2002] 4 All ER 1162.
2 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for
signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953). See
Nicholas Bamforth, 'A Constitutional Basis for Anti-Discrimination Protection?' (2003) 119
Law Quarterly Review 215, 218. Bamforth notes four limitations on the 'interpretative
obligation' raised in this case.
3 [2002] EWCA Civ 1533; [2002] 4 All ER 1162, 1179 [17] (Buxton LJ). Keene LJ gave a
concurring judgment: at 1175–6
[37]–
[45]; Kennedy LJ agreed with both judgments: at 1176
[46].
[4]Ibid 1174
[35] (Buxton LJ) (emphasis in original).
5 Discrimination against same-sex couples was held to be inconsistent with the Sex
Discrimination Act in different circumstances: see McBain v Victoria [2000] FCA 1009; (2000) 99 FCR 116
(Sundberg J). The High Court upheld the decision but did not consider the question of
inconsistency: Re McBain; Ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372. For
analysis of the McBain litigation, see Kristen Walker, 'The Bishops, The Doctor, His Patient,
and the Attorney-General: The Conclusion of the McBain Litigation' (2002) 30 Federal Law
Review 507.
6 See, eg, Convention on the Elimination of All Forms of Discrimination Against Women, opened
for signature 18 December 1979, 1249 UNTS 13, arts 2 and 3 (entered into force 3 September
[1981]) ('CEDAW'); European Convention on Human Rights, art 14.
7 Including the referenda of 1999, only 8 of the 44 proposals, on 19 referendum days, have
passed: Tony Blackshield and George Williams, Australian Constitutional Law and Theory:
Commentary and Materials (3rd ed, 2002) 1301. This includes the proposal rejected in 1988, to
extend to the States rights already protected against the Commonwealth in the
Commonwealth Constitution (trial by jury, freedom of religion, and the requirement of just
compensation for expropriated property): Gerry Ferguson, 'The Impact of an Entrenched
Bill of Rights: The Canadian Experience' (1990) 16 Monash University Law Review 211, 216.
Nationally, 30.33 per cent of voters favoured this proposal, while 68.19 per cent voted
against, the lowest 'Yes' vote ever recorded in Australia: George Williams, 'Legislating for a
Bill of Rights Now' (Paper presented at the Department of the Senate Occasional Lecture
Series, Canberra, 17 March 2000) 29.
8 Michael Wait, 'The Slumbering Sovereign: Sir Owen Dixon's Common Law Constitution
Revisited' (2001) 29 Federal Law Review 57, 60; Tony Blackshield and George Williams,
Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998) 131; Sir
Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of the
Australian and the United States Experience' (1986) 16 Federal Law Review 1, 11; DA
Smallbone, 'Recent Suggestions of an Implied "Bill of Rights" in the Constitution:
Considered as Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal
Law Review 254, 254–5.
[9] [1996] HCA 24; (1996) 189 CLR 51, 74 (footnotes omitted), see generally 71–6.
[10] [1998] HCA 22; (1998) 195 CLR 337, 355.
11 Brennan CJ and McHugh J drew support from quotations from several famous exponents
of the traditional parliamentary sovereignty doctrine in the UK, eg, Edward Coke, Institutes
of the Laws of England (1797) vol 4, 36: ibid 355; Blackstone's Commentaries (9th ed, 1783)
Book 1, 160 and 186: ibid 355; Sir William Anson, The Law and Custom of the Constitution
(1909) vol 1, 7: ibid 357.
12 See Mark D Walters, 'St German on Reason and Parliamentary Sovereignty' (2003) 62
Cambridge Law Journal 335, especially 367–8. The author distinguishes 'statutory
omnicompetence' (parliamentary power over all subject matters, including the 'supremacy'
of Parliament over the King's prerogative powers) from 'statutory or legal omnipotence'
(power not only to legislate on all subject matters, but also to legislate free of any legal
limitations setting moral or other minimum standards for the content of legislation).
Parliamentary sovereignty in its traditional 'Diceyan' sense involves the assertion of legal
omnipotence; parliamentary supremacy or omnicompetence does not.
13 See generally Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy
(1999). For a critical review, see Douglas E Edlin, 'Rule Britannia' (2002) 52 University of
Toronto Law Journal 313. See also Paul Craig, 'Sovereignty of the United Kingdom
Parliament after Factortame' (1991) 11 Yearbook of European Law 221, 222–40; Nicholas Barber,
'Sovereignty Re-examined: The Courts, Parliament and Statutes' (2000) 20 Oxford Journal of
Legal Studies 131, 131–42; Douglas W Vick, 'The Human Rights Act and the British
Constitution' (2002) 37 Texas International Law Journal 329, 335–6 and footnotes for
references describing opposing views.
14 AV Dicey, An Introduction to the Study of the Law of the Constitution (10th ed, 1959) 39–40.
Austin was also a strong advocate: John Austin, The Province of Jurisprudence Determined
(1954) lecture IV. See Joseph Raz, The Concept of a Legal System (2nd ed, 1980) chs 1 and 2.
15 HWR Wade, 'The Basis of Legal Sovereignty' [1955] Cambridge Law Journal 172, 174. In
relation to parliamentary sovereignty, see generally RFV Heuston, Essays in Constitutional
Law (2nd ed, 1964) ch 1; JDB Mitchell, Constitutional Law (2nd ed, 1968) ch 4; Geoffrey
Marshall, Constitutional Theory (1971), ch 3; Owen Hood Phillips and Paul Jackson, O Hood
Phillips and Jackson: Constitutional and Administrative Law (8th ed, 2001) chs 3 and 4. The
contemporary relevance of the doctrine might be criticised in light of decisions which have
upheld the effectiveness of the European Communities Act 1972 (UK) c 68, s 2(4) and the
Human Rights Act 1998 (UK) s 3, eg R v Secretary of State for Transport; Ex parte Factortame Ltd
(No 2) [1990] EUECJ C21389; [1991] 1 AC 603. See below, from text accompanying n 77.
16 See, eg, G de Q Walker, 'Dicey's Dubious Dogma of Parliamentary Sovereignty: A Recent
Fray with Freedom of Religion' (1985) 59 Australian Law Journal 276, 279.
[17]Dicey, above n 14, 40.
[18]Section 13 was recently discussed in Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 202 ALR 233.
19 The Australia Act 1986 (Cth), rather than the UK Act, is determinative in Australia:
Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 202 ALR 233, 248
[67] (Gleeson CJ, Gummow,
Hayne and Heydon JJ), 282 [203] (Kirby J, denying the
relevance of the UK Parliament).
This is consistent with prior decisions such as Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 487
[48]–
[49].
20 In Attorney-General (WA) v Marquet, ibid 251 [80], the
majority found it unnecessary to
decide whether, separately from and in addition to the provisions of that section, there is
some other source for a requirement to comply with the Electoral Distribution Act 1947 (WA)
21 Western Australia v Wilsmore [1981] WAR 179. Cited with apparent approval in McGinty v
Western Australia [1995] HCA 46; (1996) 186 CLR 140, 209 n 342 (Toohey J); without deciding it, Gummow J
raised this possibility at 296–7.
[22][1952] 2 SALR 428, 464.
[23][1965] AC 172, 197.
24 Ibid. For a discussion of these possibilities, see Carolyn Evans, 'Entrenching Constitutional
Reform in Australia' (2003) Public Law Review 133, 135–6. For a discussion of the bases for
manner and form, see generally Gerard Carney, 'An Overview of Manner and Form in
Australia' (1989) 5 Queensland University of Technology Law Journal 69.
25 This view might require moderation in light of Acts implementing European Community
Law. See discussion below from text accompanying n 77.
26 Heuston, above n 15, 6–7. See also Sir Ivor Jennings, The Law and the Constitution (5th ed,
1967) ch 4; Marshall, above n 15, ch 3. Jennings' view was cited, with apparent support, in R
v Mercure [1988] 1 SCR 234, 278–9 (La Forest J). A final interpretation of the doctrine
provides that parliament's sovereignty is 'self-embracing', that is, parliament can make any
law including a law that binds future parliaments. This has not received widespread
acceptance. For a discussion, see HLA Hart, The Concept of Law (1961) 145–6. See also
Marshall, above n 15, 45–7; George Winterton, 'The British Grundnorm: Parliamentary
Supremacy Re-examined' (1976) 92 Law Quarterly Review 591.
[27] [1931] HCA 3; (1931) 44 CLR 394.
28 This is the case, at least, for entrenchment of laws with respect to the constitution, powers
and procedure of Parliament, pursuant to Australia Acts 1986 (Cth and UK) s 6. Bases upon
which manner and form provisions might be binding are discussed above, text
accompanying nn 19–24.
29 Section 6 is widely viewed as a 're-enactment' or 'preservation' of the Colonial Laws Validity
Act 1865 (Imp) 28 & 29 Vict c 63, s 5, despite differences in the wording of the two
provisions. See Carney, above n 24, 74; Richard D Lumb, The Constitutions of the Australian
States (5th ed, 1991) 117.
[30] [2003] HCA 67; (2003) 202 ALR 233, 249
[68] (Gleeson CJ, Gummow, Hayne and Heydon JJ).
31 Kartinyeri v Commonwealth [1998] HCA 22; (1998) 195 CLR 337, 356 (Brennan CJ and McHugh J). See
generally George Winterton, 'Can the Commonwealth Parliament Enact "Manner and
Form" Legislation?' (1980) 11 Federal Law Review 167, 191. But note the Flags Act 1953 (Cth)
s 3(2), which contains a manner and form provision requiring a referendum to change the
Australian flag.
[32]These provisions were noted by Winterton, ibid.
33 For arguments that the Commonwealth Parliament could enact interpretation provisions,
see, Winterton, ibid 185; See also Senate Standing Committee on Constitutional and Legal
Affairs, Commonwealth Parliament, A Bill of Rights for Australia: Exposure Report for the
Consideration of Senators (1985) 57 [4.16].
[34]European Communities Act 1972 (UK) s 2(4).
[35]Human Rights Act 1998 (UK) s 3(1).
[36]Canadian Bill of Rights s 2.
37 Bill of Rights Act 1990 (NZ) s 6.
38 In relation to New Zealand, see, eg, Andrew Butler, 'Strengthening the Bill of Rights' (2000)
31 Victoria University of Wellington Law Review 129, 143; in relation to the UK, see Geoffrey
Lindell, 'Invalidity, Disapplication and the Construction of Acts of Parliament: Their
Relationship with Parliamentary Sovereignty in the Light of the European Communities
Act and the Human Rights Act' (1999) 2 Cambridge Yearbook of European Legal Studies 399.
[39]See, eg, Attorney-General (NSW) v Trethowan [1931] HCA 3; (1931) 44 CLR 394; [1932] AC 526 (PC).
[40]See, eg, R v Mercure [1988] 1 SCR 234, see especially 278–80 (La Forest J).
41 Electoral Act 1956 (NZ) s 189, now Electoral Act 1993 (NZ) s 268, is an example of a manner
and form provision in New Zealand, but has not been tested by the courts. There is no
provision which entrenches the entrenching provision.
42 The traditional Diceyan approach to manner and form provisions in the UK is that they are
not binding. Alternative models of parliamentary sovereignty and parliamentary
supremacy are discussed below. The 'self-embracing' theory might bind parliaments to
follow manner and form provisions enacted by their predecessors. See above n 26.
43 This was the term used by Evatt J in South-Eastern Drainage Board (South Australia) v Savings
Bank of South Australia [1939] HCA 40; (1939) 62 CLR 603, 634.
44 The Bill was introduced in the Senate on 21 November 1973: for the first and second
reading speeches, see Commonwealth, Parliamentary Debates, Senate, 21 November 1973,
1971–4 (Lionel Murphy, Attorney-General). The bill lapsed with the 1974 double
dissolution.
45 The Bill was introduced in the Senate but did not progress beyond its Second Reading:
Commonwealth, Parliamentary Debates, Senate, 27 September 2001, 28110–1 (Meg Lees).
Clause 9 is also an interpretation provision.
46 The Bill was introduced in the House of Representatives but did not progress beyond its
First Reading: see Commonwealth, Parliamentary Debates, House of Representatives, 2 April
[2001], 26112–6 (Andrew Theophanous). Clause 9 is also an interpretation provision.
47 Australian Bill of Rights Bill 1985 (Cth) cll 10 and 12 were also interpretation provisions,
although in different terms. This Bill was passed by the House of Representatives but
withdrawn by the government in the Senate: for the first and second reading speeches, see
Commonwealth, Parliamentary Debates, House of Representatives, 9 October 1985, 1705–6
(Lionel Bowen, Attorney General); for the third reading speech, see 2899. For discussion,
see NFK O'Neill, 'The Australian Bill of Rights Bill 1985 and the Supremacy of Parliament'
(1986) 60 Australian Law Journal 139.
48 The words 'any force and effect' are similar to Constitution Act 1982, being schedule B to the
Canada Act 1982 (UK) c 11, s 52(1) which has been likened in operation to the Canadian Bill
of Rights, s 2.
49 The Human Rights Act 2004 (ACT) was notified on 10 March 2004 and will commence on 1
July 2004. For background to the Act, see ACT Bill of Rights Consultative Committee,
Legislative Assembly of the Australian Capital Territory, Towards an ACT Human Rights Act
(2003); Leighton McDonald, 'New Directions in the Australian Bill of Rights Debate' [2004]
Public Law 22.
50 Explanatory Statement, Human Rights Bill 2003 (ACT) 5, available at ACT Legislation
Register <http://www.legislation.act.gov.au/es/db_8294/current/pdf/db_8294.pdf> at
[12] March 2004.
51 Ibid. In this sense, s 30 of the Human Rights Act 2004 (ACT) is similar to the Bill of Rights Act
1990 (NZ) ss 4 and 6. See below, from text accompanying n 90.
[52] [1939] HCA 40; (1939) 62 CLR 603 ('South-Eastern Drainage Board').
53 See, eg, Egan v Willis [1998] HCA 71; (1998) 195 CLR 424, 493 (Kirby J): 'It is the nature of a federal polity
that it constantly renders the organs of government, federal and State, accountable to a
constitutional standard.' Similar judicial comments were made by the Canadian Supreme
Court in Amax Potash Ltd v Government of Saskatchewan [1977] 2 SCR 576, 590.
54 There have, however, been instances where courts have questioned the legal effect of laws.
The dicta of Lord Coke in Bonham's Case (1610) 8 Co Rep 107a; 77 ER 646 is well known. In
New Zealand, President Cooke, of the Court of Appeal, suggested that Parliament could
not abrogate fundamental common law rights: New Zealand Drivers' Association v New
Zealand Road Carriers [1982] 1 NZLR 374, 390; Fraser v State Services Commission [1984] 1
NZLR 116, 121; Taylor v New Zealand Poultry Board [1984] 1 NZLR 394, 398. See John L
Caldwell, 'Judicial Sovereignty — A New View' [1984] New Zealand Law Journal 357.
55 For a useful comparison of human rights legislation in these jurisdictions, see Andrew
Butler, 'Judicial Review, Human Rights and Democracy' in Grant Huscroft and Paul
Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 47;
ACT Bill of Rights Consultative Committee, above n 49, 44–54.
56 Of course, Commonwealth interpretation provisions would bind State Parliaments because
of the Commonwealth Constitution s 109.
57 The Australia Act 1986 (Cth) s 6 (and its predecessor, the Colonial Laws Validity Act 1865
(Imp) 28 & 29 Vict c 63, s 5) only binds Parliament in relation to laws respecting the
constitution, powers, and procedures of Parliament.
[58][1952] 2 SALR 428, 464.
[59][1965] AC 172, 197. See above, text accompanying nn 19–24.
[60] [1939] HCA 40; (1939) 62 CLR 603, 625 (Dixon J), 636 (McTiernan J).
[61] [1931] HCA 3; (1931) 44 CLR 394. In relation to Trethowan, see above, text accompanying n 27.
[62] [1939] HCA 40; (1939) 62 CLR 603, 634.
63 Ibid 623.
64 The Supreme Court has upheld provincial interpretation provisions in relation to human
rights codes in Ford v Quebec [1988] 2 SCR 712; Devine v Quebec [1988] 2 SCR 790. A human
rights code containing an interpretation provision was upheld in Scowby v Glendinning
[1986] 2 SCR 226, 236, although the Court did not refer to the interpretation provision.
65 See generally Jonathan L Black-Branch, Rights and Realities: The Judicial Impact of the
Canadian Charter of Rights and Freedoms on Education, Case Law and Political Jurisprudence
(1997); Gérald A Beaudoin and Errol Mendes (eds), The Canadian Charter of Rights and
Freedoms (3rd ed, 1996).
66 The Bill of Rights was relied upon in circumstances in which the Charter was not considered
to apply in Singh v Minister of Employment and Immigration [1985] 1 SCR 177, 224 (Beetz,
Estey and McIntyre JJ) and MacBain v Lederman [1985] 1 FC 856 (Court of Appeal).
67 In relation to s 33, see generally Mark Tushnet, 'Judicial Activism or Restraint in a Section
33 World' (2003) 53 University of Toronto Law Journal 89; Kent Roach, The Supreme Court on
Trial: Judicial Activism or Democratic Dialogue (2001).
68 R v Drybones [1970] SCR 282, 294 ('Drybones'). See also Attorney-General (Canada) v Lavell
[1974] SCR 1349, 1382 (Hall, Spence and Laskin JJ, dissenting; Abbott J concurred with the
minority (at 1373)); Canard v Attorney-General (Canada) [1972] 5 WWR 678. It has also been
suggested that the Commonwealth Parliament could enact similar provisions: Winterton,
above n 31, 190. But contrast Sir Harry Gibbs, 'Eleventh Wilfred Fullagar Memorial Lecture:
The Constitutional Protection of Human Rights' (1982) 9 Monash University Law Review 1.
[69][1985] 1 SCR 177 ('Singh').
[70]Ibid 220 (Wilson J).
[71]Ibid 237 (Beetz J).
[72]Ibid 239.
[73]Ibid.
74 [1985] 1 FC 856 (Court of Appeal). The view that Drybones need not be confined to
provisions enacted after the Canadian Bill of Rights is supported by Joseph Jaconelli,
Enacting a Bill of Rights: The Legal Problems (1980) 160–1; FM Auburn, 'Trends in
Comparative Constitutional Law' (1972) 35 Modern Law Review 129, 130.
[75]These provisions were categorised as 'disapplication clauses' in Lindell, above n 38.
76 These provisions implement the European Convention on Human Rights. Jurisdiction to
disapply Acts which are incompatible with European Community law has been upheld by
the House of Lords in R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1991]
1 AC 603 ('Factortame'); R v Secretary of State for Employment; Ex parte Equal Opportunities
Commission [1994] UKHL 2; [1995] 1 AC 1. See also Anisminic Ltd v Foreign Compensation Commission [1969] 2
AC 147. Contrast the approach of the majority in Blackburn v Attorney-General [1971] 1 WLR
1037, 1041 (but see comments of Lord Denning MR, 1040).
[77]Ibid.
78 For example, declarations of incompatibility were made in R(H) v North and East London
Mental Health Review Tribunal [2002] QB 1 ('R(H)'); International Transport Roth GmBH v
Secretary of State for the Home Department [2003] QB 728 ('International Transport'). Courts
have held that a declaration of incompatibility is a measure of last resort, which should be
avoided unless it is plainly impossible to do so: see, eg, R v Secretary of State for the Home
Department; Ex parte Simms [1999] UKHL 33; [2000] 2 AC 115, 132 (Lord Hoffmann).
79 See the Human Rights Act 1998 (UK) ss 10–12. In R(H) and International Transport, ibid, the
government responded to address the incompatibility. See generally Keir Starmer, 'Two
years of the Human Rights Act' [2003] European Human Rights Law Review 14, 20.
[80] [2001] UKHL 25; [2002] 1 AC 45.
[81]Ibid 66
[39] (Lord Steyn) (emphasis in original).
[82]Ibid 67–8
[44].
83 Ibid 87
84 See, eg, Re S (Minors) (Care Order: Implementation of Care Plan); Re W (Minors) (Care Order:
Adequacy of Care Plan) [2002] UKHL 10; [2002] 2 AC 291, 313 [37]– [41] (Lord
Nicholls). See also R v Lambert
[2001] 2 WLR 211, 219
[16] (Lord Woolf CJ); aff'd [2001] UKHL 37; [2002] 2 AC 545.
[85]R v Lambert [2001] UKHL 37; [2002] 2 AC 545, 585
[79] (Lord Hope).
86 See, eg, R v DPP; Ex parte Kebilene [1999] UKHL 43; [2000] 2 AC 326, 380–1 (Lord Hope). See generally Paul
Craig, 'The Courts, the Human Rights Act and Judicial Review' (2001) 117 Law Quarterly
Review 589; Richard Clayton, 'Judicial Deference and "Democratic Dialogue": The
Legitimacy of Judicial Intervention Under the Human Rights Act 1998' [2004] Public Law 33.
[87] [2002] EWCA Civ 1533; [2002] 4 All ER 1162. See above, text accompanying n 1.
88 Ibid 1170 [19]. Keene LJ also stated that the Court was
concerned with 'rights of high
constitutional importance, where the courts are equipped to arrive at a judgment. It is
indeed a classic role of the courts to be concerned with the protection of such minority
rights': 1176
[44]).
[89]Ibid 1170
[19].
90 R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the
Regions (SSETR) [2001] UKHL 23; [2003] 2 AC 295.
91 Butler, above n 38, 135.
92 Ibid 133–6; Philip A Joseph, 'The New Zealand Bill of Rights Experience' in Philip Alston
(ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 283, 299;
James Allan, 'Oh that I Were Made Judge in the Land' (2002) 30 Federal Law Review 561, 563–
[5].
93 For Court of Appeal cases involving the Bill of Rights Act, ss 4 and 6, see R v Pora [2001] 2
NZLR 37; Moonen v Film and Literature Board of Review [2000] 2 NZLR 9; Simpson v Attorney-
General [1994] 3 NZLR 667 ('Baigent's Case'). See generally Grant Huscroft and Paul
Rishworth (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human
Rights Act 1993 (1995); Andrew Butler, 'The Bill of Rights Debate: Why the New Zealand
Bill of Rights Act 1990 is a Bad Model for Britain' (1997) 17 Oxford Journal of Legal Studies
323; Janet McLean, 'Legislative Invalidation, Human Rights Protection and s 4 of the New
Zealand Bill of Rights Act' [2001] New Zealand Law Review 421.
[94][2001] 2 NZLR 37.
95 For commentary supporting Elias CJ, Tipping and Thomas JJ, see, eg, Daniel Kalderimis
and Chapman Tripp, 'R v Pora' [2001] New Zealand Law Journal 369. For criticism of these
judges and support for Gault, Keith and McGrath JJ, see Anita Killeen, Richard Ekins and
John Ip, 'Undermining the Grundnorm?' [2001] New Zealand Law Journal 299; Allan, above
n 92, 561.
[96]See, eg, R v Pora [2001] 2 NZLR 37, 50
[49]–
[50] (Elias CJ, Tipping J agreeing).
[97]Ibid.
98 Ibid 62 [107] (Keith J, Gault and McGrath JJ
agreeing).
99 HWR Wade, 'Sovereignty — Revolution or Evolution?' (1996) 112 Law Quarterly Review 568,
100 For both sides of the debate, see Goldsworthy, above n 13, 15; John Laws, 'Law and
Democracy' [1995] Public Law 72, 88–90; Trevor Allan, 'Parliamentary Sovereignty: Law,
Politics, and Revolution' (1997) 113 Law Quarterly Review 443, 445; Trevor Allan, 'Legislative
Supremacy and the Rule of Law: Democracy and Constitutionalism' (1985) 44 Cambridge
Law Journal 111; Craig, above n 13, 251–3; Lindell, above n 38; Trevor C Hartley, The
Foundations of European Community Law (2nd ed, 1988) 240–3; Geoffrey Marshall,
'Parliamentary Sovereignty: The New Horizons' [1997] Public Law 1; Joseph Jaconelli,
'Constitutional Review and Section 2(4) of the European Communities Act 1972' (1979) 28
International and Comparative Law Quarterly 65.
101 Butler, above n 93, 340. For support for this view, see Michael Taggart, 'Tugging on
Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990'
[1998] Public Law 266, 280. For an alternative, critical view, see Jim Evans, 'Questioning the
Dogmas of Realism' [2001] New Zealand Law Review 145, 166; Allan, above n 92.
102 Butler, ibid.
[103]Lindell, above n 38, 409.
[104][1985] 2 SCR 150.
[105]Ibid 156 (McIntyre J, for the Court).
[106]See, eg, Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476, 492
[30] (Gleeson CJ).
107 Ibid; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh
JJ).
108 Vauxhall Estates Ltd v Liverpool Corporation [1932] 1 KB 733; Ellen Street Estates Ltd v Minister
of Health [1934] 1 KB 590.
[109]R v Secretary of State for Transport; Ex parte Factortame Ltd (No 2) [1990] EUECJ C21389; [1991] 1 AC 603.
110 Enid Campbell, 'Comment on State Government Agreements' (1977) 1 Australian Mining
and Petroleum Law Journal 53, 54; Carney, above n 24, 72, 75–7; Winterton, above n 31, 186
n 36; Lumb, above n 29, 117–8.
111 At the time, that requirement was contained in the Colonial Laws Validity Act 1865 (Imp).
For criticism of the decision on this ground, see West Lakes Ltd v South Australia (1980) 25
SASR 389, 396 (King CJ), 419 (Matheson J); Lumb, ibid. See discussion in Carney, above
n 24, 75–7; Winterton, above n 31, 186 n 36. Contrast Commonwealth Aluminium Corporation
Limited v Attorney-General [1976] Qd R 231, 237 (Wanstall SPJ), 248 (Hoare J); HP Lee,
'"Manner and Form": An Imbroglio in Victoria' (1992) 15 University of New South Wales Law
Journal 516, 529.
[112]See Lindell, above n 38, 409.
113 Of course, there are elements of the law-making process that are not democratically elected,
eg, the Queen and members of the Senate (appointed pursuant to the Commonwealth
114 Lord Irvine of Lairg, 'The Human Rights Act Two Years On: An Analysis' (Lecture
delivered at The Inaugural Irvine Human Rights Lecture, Durham, 1 November 2002)
available at <http://www.lcd.gov.uk/speeches/2002/lc011102.htm> at 11 March 2004.
The same balance is referred to in defence of the Bill of Rights 1990 (NZ) in McLean, above
n 93, 448.
[115]See above, text accompanying nn 80–90, 91–8.
[116]See Starmer, above n 79, 15–16, and references cited there.
117 Peter Hogg, Constitutional Law of Canada (4th ed, 1997) 794.
118 The leading manner and form case is R v Mercure [1988] 1 SCR 234, see especially 278–80
(La Forest J). The majority held the manner and form provision binding, relying on Bribery
Commissioner v Ranasinghe [1965] AC 172, 197–8; Attorney-General (NSW) v Trethowan [1932]
AC 526 (Privy Council); Harris v Minister for the Interior [1952] 2 SALR 428. The majority did
not discuss Drybones.
[119]See above, from text accompanying n 68.
[120]This view was supported in Winterton, above n 31, 185.
121 In this way, the interpretation provision would have a similar effect for later inconsistent
statutes as the Commonwealth Parliament's statutes have for inconsistent State
Parliaments' statutes, as a result of the Commonwealth Constitution s 109. In relation to the
effect of s 109, see Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268, especially 286
(Windeyer J); Western Australia v Commonwealth [1995] HCA 47; (1995) 183 CLR 373, 464–8 (Mason CJ,
Brennan, Deane, Toohey, Gaudron and McHugh JJ).
[122]But note Gummow J's comments in McGinty v Western Australia [1995] HCA 46; (1996) 186 CLR 140, 297.
[123]See above, from text accompanying n 31.
[124][1952] 2 SALR 428, 464.
[125][1965] AC 172, 197.
126 See, eg, Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432, 452–3 (Barwick CJ, McTiernan J agreeing);
Victoria v Commonwealth [1975] HCA 39; (1975) 134 CLR 81 ('PMA Case'), 162–4 (Gibbs J).
127 Gummow J expressly left the question open in McGinty v Western Australia (1996) 186 CLR
140, 297.
128 Of course, the Commonwealth Parliament would require a head of power in the
Commonwealth Constitution to enact a Bill of Rights. If such a Bill of Rights only protected
rights contained in international instruments evidencing 'international concern', the
s 51(xxix) external affairs power might provide a basis for legislative power. Alternatively,
State Parliaments could use interpretation provisions to protect a Bill of Rights.
129 It is beyond the scope of this article to consider the arguments for and against the
enactment of a Bill of Rights. For a summary of arguments on both sides, see, eg, George
Williams, Human Rights Under the Australian Constitution (1999); Justice Michael Kirby, A
Bill of Rights for Australia: But Do We Need It? (1997) Law and Justice Foundation of NSW
<http://www.lawfoundation.net.au/resources/kirby/papers/19971214_austlaw.html> at
[9] March 2003; Allan, above n 92, 573–4.
130 This was recognised in relation to the Canadian Charter of Rights and Freedoms in Peter Hogg
and Allison Bushell, 'The Charter Dialogue between Courts and Legislatures' (1997) 35
Osgoode Hall Law Journal 75. See also Clayton, above n 86, 33.
131 Justice Ronald Sackville, 'A Bill of Rights: Form and Substance' (2000) 19 Australian Bar
Review 101, 106. See also R v Secretary of State for the Home Department; Ex parte Simms [2000]
2 AC 115, 131 (Lord Hoffman); apparently approved in Plaintiff S157/2002 v Commonwealth
[2003] HCA 2; (2003) 211 CLR 476, 492 [30] (Gleeson CJ).