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Meyerson, Denise --- "Why Courts Should Not Balance Rights against the Public Interest" [2007] MelbULawRw 34; (2007) 31(3) Melbourne University Law Review 873

[*] BA (Witwatersrand), LLB (Cape Town), BPhil, DPhil (Oxon); Professor in Law, Division of Law, Macquarie University.

[1] For more on definitional restrictions: see Aileen McHarg, ‘Reconciling Human Rights and the Public Interest’ (1999) 62 Modern Law Review 671, 671.

[2] Human Rights Act 2004 (ACT) s 9; Victorian Charter s 9.

[3] Stephen Gardbaum, ‘Limiting Constitutional Rights’ (2007) 54 UCLA Law Review 789, 801, 806.

[4] Opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953).

[5] Opened for signature 20 March 1952, 213 UNTS 262 (entered into force 18 May 1954).

[6] Opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985).

[7] Human Rights Act 1998 (UK) c 42, sch 1 art 8(1).

[8] Human Rights Act 1998 (UK) c 42, sch 1 art 8(2).

[9] Human Rights Act 1998 (UK) c 42, sch 1 art 9.

[10] Human Rights Act 1998 (UK) c 42, sch 1 art 10.

[11] Human Rights Act 1998 (UK) c 42, sch 1 art 11.

[12] Human Rights Act 1998 (UK) c 42, sch 1 art 1.

[13] See, eg, Case ‘Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium’ (1968) 6 Eur Court HR (ser A) 4, 34.

[14] See, eg, Ghaidan v Godin‑Mendoza [2004] UKHL 30; [2004] 2 AC 557, 566 (Lord Nicholls) (‘Ghaidan’). See also Part VI.

[15] Victorian Charter s 7(2). The relevant factors are the nature of the right (s 7(2)(a)), the importance and purpose of the limitation (s 7(2)(b)), the nature and extent of the limitation (s 7(2)(c)), the relationship between the limitation and its purpose (s 7(2)(d)) and any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve (s 7(2)(e)).

[16] Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11, pt I.

[17] R v Oakes [1986] 1 SCR 103, 138 (Dickson CJC for Chouinard, Lamer, Wilson and Le Dain JJ).

[18] Ibid. The phrase ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’ was cited by Dickson CJC from his judgment in R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295, 352. In that case, Dickson CJC similarly delivered judgment for the majority: Beetz, McIntyre, Chouinard and Lamer JJ.

[19] R v Oakes [1986] 1 SCR 103, 139 (Dickson CJC).

[20] Ibid, citing R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295, 352.

[21] R v Oakes [1986] 1 SCR 103, 139.

[22] Ibid, citing R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295, 352 (Dickson CJC for Dickson CJC, Beetz, McIntyre, Chouinard and Lamer JJ).

[23] R v Oakes [1986] 1 SCR 103, 139 (Dickson CJC). Virtually identical meaning was given to the only slightly less open‑ended limitation clause in the Constitution of the Republic of South Africa Act 200 of 1993 (Interim Constitution) (South Africa) in S v Makwanyane [1995] ZACC 3; (1995) 3 SA 391 (CC) 436 (Chaskalson P). This interpretation subsequently influenced the framing of the limitation clause in the Constitution of the Republic of South Africa Act 108 of 1996 (Final Constitution) (South Africa), which reads very similarly to s 7(2) of the Victorian Charter.

[24] Walter van Gerven, ‘The Effect of Proportionality on the Actions of Member States of the European Community: National Viewpoints from Continental Europe’ in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) 37, 44.

[25] Ibid 43.

[26] Ibid 37–9.

[27] Nicholas Green, ‘Proportionality and the Supremacy of Parliament in the UK’ in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) 145, 146; Paul Craig, ‘Unreasonableness and Proportionality in UK Law’ in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) 85, 99–100.

[28] Evelyn Ellis, ‘The Concept of Proportionality in European Community Sex Discrimination Law’ in Evelyn Ellis (ed), The Principle of Proportionality in the Laws of Europe (1999) 165, 165–70.

[29] Ghaidan [2004] UKHL 30; [2004] 2 AC 557, 605 (Baroness Hale); R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37; [2006] 1 AC 173, 179 (Lord Nicholls), 193 (Lord Walker).

[30] Gardbaum, above n 3, 825–6, 849.

[31] Robert Alexy, A Theory of Constitutional Rights (Julian Rivers trans, 2002 ed) 397–9 [trans of: Theorie der Grundrechte].

[32] Ibid 67–8.

[33] For another attack on the balancing metaphor in the context of discussing legal responses to terrorism: see Simon Bronitt, ‘Constitututional Rhetoric v Criminal Justice Realities: Unbalanced Responses to Terrorism?’ (2003) 14 Public Law Review 76, 79–80; Simon Bronitt and James Stellios, ‘Sedition, Security and Human Rights: “Unbalanced” Law Reform in the “War on Terror”’ [2006] MelbULawRw 29; (2006) 30 Melbourne University Law Review 923, 955–6.

[34] I have borrowed the term ‘overenforcement’ from Richard H Fallon Jr, Implementing the Constitution (2001) 6–7. He uses it in the context of pointing out that some of the tests used by the United States Supreme Court to resolve constitutional issues go further than is required by the United States Constitution’s meaning.

[35] T Alexander Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale Law Journal 943.

[36] Ibid 945.

[37] Richard H Fallon Jr, ‘Individual Rights and the Powers of Government’ (1993) 27 Georgia Law Review 343.

[38] Gardbaum, above n 3, 800.

[39] Fallon, ‘Individual Rights and the Powers of Government’, above n 37, 360.

[40] Ibid 362.

[41] Alexy, above n 31, 47–8.

[42] Ibid 50–1, 65.

[43] Ibid 47.

[44] Ibid 50–1.

[45] Ibid.

[46] Ibid 67, 105.

[47] Ibid 102.

[48] Joseph Raz, Practical Reason and Norms (1975) 36.

[49] Ibid.

[50] Ibid 39.

[51] Ibid 38.

[52] Ibid 38, 44–5.

[53] Ibid 41–3.

[54] Ibid 42.

[55] Joseph Raz, The Authority of Law (1979) 17–18.

[56] Louis E Feldman,‘Originalism through Raz‑Colored Glasses’ (1992) 140 University of Pennsylvania Law Review 1389, 1398.

[57] Joseph Raz, The Morality of Freedom (1986) 35.

[58] Ibid 52.

[59] Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (1994) 214.

[60] Amartya Sen and Bernard Williams, ‘Introduction’ in Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond (1982) 1, 18.

[61] Richard H Fallon Jr, ‘Further Reflections on Rights and Interests: A Reply’ (1993) Georgia Law Review 489, 489.

[62] Stephen R Perry, ‘Judicial Obligation, Precedent and the Common Law’ (1987) 7 Oxford Journal of Legal Studies 215, 221–2.

[63] Ibid 221.

[64] Ibid 220.

[65] Ibid 222.

[66] Ibid.

[67] Ibid (emphasis in original).

[68] Ibid (emphasis in original).

[69] Ibid.

[70] Ibid 223.

[71] Stephen R Perry, ‘Second‑Order Reasons, Uncertainty and Legal Theory’ (1989) 62 Southern California Law Review 913, 932.

[72] Ibid 944. Perry uses this phrase in explaining what is involved in adopting the third conception of precedent: it involves introducing a ‘deliberate and systematic bias into [a judge’s] practical reasoning’ in favour of previous decisions about what the objective balance of reasons requires.

[73] See J J C Smart and B Williams, Utilitarianism: For and Against (1973) 10. Smart and Williams accuse rule‑utilitarians of irrational ‘rule worship’ because they believe that rules should be followed even in circumstances where rule‑following will not maximise utility. I have modelled the charge of rights worship on Smart and Williams’ idea of rule worship.

[74] Ronald Dworkin, Taking Rights Seriously (1977) xi.

[75] Ibid 92, 191.

[76] Ibid 191.

[77] Ibid 191–2.

[78] Ibid 198.

[79] Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Regh trans, 1996 ed) 259 [trans of: Faktizität und Geltung: Beiträge zur Diskurstheorie des Rechts und des Demokratischen Rechtstaats].

[80] Ibid 258–9.

[81] Frederick Schauer, ‘A Comment on the Structure of Rights’ (1993) 27 Georgia Law Review 415, 429.

[82] Ibid.

[83] Ibid 429–30.

[84] Ibid 432.

[85] Ibid.

[86] Gardbaum, above n 3, 828.

[87] Ibid. See also Mattias Kumm, ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice’ (2004) 2 International Journal of Constitutional Law 574, 591–2.

[88] Judge Richard A Posner, Law, Pragmatism, and Democracy (2003) 63.

[89] See Alexy, above n 31, 50–1.

[90] See, eg, Dworkin, Taking Rights Seriously, above n 74, 193–4: in cases of conflict between the rights of members of society as individuals, government is obliged to protect the more important right at the cost of the less important one.

[91] John Rawls, A Theory of Justice (1971) 446–52.

[92] Frederick Schauer, ‘Commensurability and Its Constitutional Consequences’ (1994) 45 Hastings Law Journal 785, 790.

[93] Thomas Nagel, Mortal Questions (1979) 133.

[94] See Charles Taylor, ‘The Diversity of Goods’ in Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond (1982) 129, 143.

[95] See, eg, Charles Fried, Right and Wrong (1978) 9. A prominent deontologist, he explains that: ‘The goodness of the ultimate consequences does not guarantee the rightness of the actions which produced them’: at 9. See also Alexy, above n 31, 87–8. Although Alexy claims that principles are deontological, he does not use the term ‘deontological’ in the way in which I have used it, namely, to describe obligations which exist independently of their consequences. Alexy uses it in a much wider sense. For him, principles are deontological merely in virtue of imposing ‘requirements’.

[96] Rawls, above n 91, 31–2.

[97] H J Paton, The Categorical Imperative: A Study in Kant’s Moral Philosophy (1971) 154, 172, 176.

[98] R M Hare, ‘Ethical Theory and Utilitarianism’ in Amartya Sen and Bernard Williams (eds), Utilitarianism and Beyond (1982) 23, 32.

[99] Ibid 35–6.

[100] Ibid 31–6. See also Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule‑Based Decision‑Making in Law and in Life (1991) 149–55. Schauer provides a similarly indirect defence of the benefits of rule‑following.

[101] Steven Greer, ‘“Balancing” and the European Court of Human Rights: A Contribution to the Habermas‑Alexy Debate’ (2004) 63 Cambridge Law Journal 412, 412. See also Aleinikoff, above n 35, 982.

[102] For an instrumental justification of treating rights and the public interest as incommensurable: see Schauer, ‘Commensurability and Its Constitutional Consequences’, above n 92, 797–9. Schauer argues that a decisional framework in which individual rights and public interest claims are seen as commensurable is likely to result in the underprotection of rights, in which case there may be strategic reasons to treat these claims as incommensurable.

[103] Frederick Schauer, ‘The Limited Domain of the Law’ (2004) 90 Virginia Law Review 1909, 1909.

[104] Ibid.

[105] Aleinikoff, above n 35, 956, 958.

[106] Posner, above n 88, 369.

[107] Ibid 59, 65.

[108] Ibid 60.

[109] This is a chapter title in Ronald Dworkin, A Matter of Principle (1985) ch 2.

[110] In Denise Meyerson, ‘State and Federal Privative Clauses — Not So Different after All’ (2005) 16 Public Law Review 39, I argue that this is also true at common law, the common law being the repository of rights‑based principles which constrain the exercise of governmental power.

[111] See Douglas W Vick, ‘Deontological Dicta’ (2002) 65 Modern Law Review 280, 286–7.

[112] Victorian Charter s 32(1); Human Rights Act 2004 (ACT) s 30(1); Human Rights Act 1998 (UK) c 42, s 3.

[113] Human Rights Act 2004 (ACT) s 32; Human Rights Act 1998 (UK) c 42, s 4.

[114] Victorian Charter s 36.

[115] Victorian Charter s 36(5)(a); Human Rights Act 2004 (ACT) s 32(3)(a), (b); Human Rights Act 1998 (UK) c 42, ss 3(2)(b), (c), 4(6)(a).

[116] Tom Hickman, ‘Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998[2005] Public Law 306, 310–11.

[117] Aileen Kavanagh, ‘The Elusive Divide between Interpretation and Legislation under the Human Rights Act 1998’ (2004) 24 Oxford Journal of Legal Studies 259, 276. The Victorian Charter and the Human Rights Act 2004 (ACT) may constrain the courts’ interpretative power more than the Human Rights Act 1998 (UK) c 42 by insisting that a rights‑consistent interpretation must be consistent with the purpose of the legislation: Victorian Charter s 32(1); Human Rights Act 2004 (ACT) s 30(2). It remains to be seen, however, how this stricture will be interpreted: see Simon Evans and Carolyn Evans, ‘Legal Redress under the Victorian Charter of Human Rights and Responsibilities(2006) 17 Public Law Review 264, 268–9.

[118] Hickman, above n 116, 307–9.

[119] Danny Nicol, ‘Law and Politics after the Human Rights Act[2006] Public Law 722, 747.

[120] Lord Atkin accused the majority of being more executive‑minded than the executive in his Lordship’s dissenting judgment in Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, 244.

[121] [2004] UKHL 39; [2004] 4 All ER 193.

[122] Recordable offences cover most criminal offences including offences under the Public Order Act 1986 (UK) c 64. See Mairi Levitt and Floris Tomasini, ‘Bar‑Coded Children: An Exploration of Issues around the Inclusion of Children on the England and Wales National DNA Database’ (2006) 2 Genomics, Society and Policy 41, 41.

[123] Police and Criminal Evidence Act 1984 (UK) c 60, s 64(1A).

[124] Police and Criminal Evidence Act 1984 (UK) c 60, s 63A.

[125] Marper [2004] UKHL 39; [2004] 4 All ER 193, 203 (Lord Steyn).

[126] Ibid.

[127] Ibid 203–5.

[128] Ibid 204.

[129] Ibid 208.

[130] Ibid 215.

[131] Ibid 216.

[132] Ibid.

[133] Ibid 203 (Lord Steyn).

[134] Ibid.

[135] Ibid 213.

[136] Ibid.

[137] Ibid 209.

[138] Ibid.

[139] Ibid 218.

[140] Ibid.

[141] Ibid 219.

[142] Ibid.

[143] Ibid 220.

[144] Ibid 219.

[145] Ibid 213.

[146] Ibid 218.

[147] See Carole McCartney, ‘The DNA Expansion Programme and Criminal Investigation’ (2006) 46 British Journal of Criminology 175, 182–3.

[148] Charles Bourne, ‘Retaining Fingerprints and DNA Samples’ (2002) 152 New Law Journal 1693, 1697.

[149] GeneWatch UK, Submission to the Home Affairs Committee Inquiry ‘A Surveillance Society?’ (26 April 2007) Genewatch.org <http://www.genewatch.org/sub-539478> .

[150] See Bourne, above n 148, 1697; see also McCartney, above n 147, 188–90.

[151] See Andrew Roberts, ‘Privacy and the DNA Database’ [2005] 4 European Human Rights Law Review 373, 383.

[152] Noticeboard, ‘Retention of DNA Samples after Acquittal’ (2005) 9 International Journal of Evidence and Proof 67, 67–8.

[153] R v RC [2005] 3 SCR 99. See also Nick Taylor, ‘Genes on Record — One Size Fits All?’ (2006) 156 New Law Journal 1354, 1355.

[154] Criminal Code, RSC 1985, c 46, s 487.051(2).

[155] R v RC [2005] 3 SCR 99, 115 (Fish J for McLachlin CJC, Major, Binnie and Deschamps JJ).

[156] Ibid 114, 118 (Fish J for McLachlin CJC, Major, Binnie and Deschamps JJ).

[157] Ibid 115 (Fish J for McLachlin CJC, Major, Binnie and Deschamps JJ).

[158] GeneWatch UK, above n 149.

[159] Marper [2004] UKHL 39; [2004] 4 All ER 193, 207.

[160] Ibid 220.

[161] Allison Clare, ‘House of Lords — Retention of Fingerprints and DNA Samples: Compatiblity with European Convention on Human Rights(2004) 68 Journal of Criminal Law 481, 483.

[162] Marper [2004] UKHL 39; [2004] 4 All ER 193, 208 (Lord Steyn), 220 (Lord Brown).

[163] [2004] UKHL 39; [2004] 4 All ER 193.

[164] [2004] UKHL 30; [2004] 2 AC 557.

[165] Although this was a dispute between private individuals, not one between an individual and a public authority, the Human Rights Act 1998 (UK) c 42 was applicable because courts are public bodies, bound by the Act when interpreting statutory provisions: Helen Carr, ‘Discrimination, Rented Housing and the Law’ (2004) 154 New Law Journal 454, 455. See also Ian Loveland, ‘Making It up as They Go Along? The Court of Appeal on Same Sex Spouses and Succession Rights to Tenancies’ [2003] Public Law 222, 231–2.

[166] See Salgueiro da Silva Mouta v Portugal (1999) IX Eur Court HR 311.

[167] Ghaidan [2004] UKHL 30; [2004] 2 AC 557, 564–70 (Lord Nicholls).

[168] Ibid 561–2.

[169] Ibid 568 (Lord Nicholls), 573 (Lord Steyn), 593, 603–4 (Lord Rodger), 608–9 (Baroness Hale).

[170] Ibid 566.

[171] Ibid 567.

[172] Ibid 568.

[173] Ibid.

[174] Ibid.

[175] Ibid 604–5.

[176] Ibid 606–7.

[177] Ibid 608.

[178] Ibid.

[179] Ibid.

[180] Ibid.

[181] Human Rights Act 1998 (UK) c 42, s 3 provides that all legislation must be read and given effect to in a way which is compatible with European Convention rights so far as it is possible to do so.

[182] Ghaidan [2004] UKHL 30; [2004] 2 AC 557, 571–2 (Lord Nicholls), 577 (Lord Steyn), 603–4 (Lord Rodger), 608–9 (Baroness Hale).

[183] See David Mead, ‘Swallowing the Camel, Straining at the Gnat: The Implications of Mendoza v Ghaidan(2003) 5 European Human Rights Law Review 501, 514. Mead makes a similar point about the reasoning in the English Court of Appeal, saying that the judgment does not explain why the right not to be discriminated against trumped socioeconomic concerns.

[184] Nicholas Bamforth, ‘Same‑Sex Partnerships: Some Comparative Constitutional Lessons’ (2007) 5 European Human Rights Law Review 47, 53–6. Bamforth stresses the fact that the House of Lords saw recognition of same‑sex partnership rights as a matter of respect for human dignity and autonomy.

[185] McHarg, above n 1, 695.

[186] Ibid 696.