Debeljak, Julie --- "Rights Protection Without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights" [2002] MelbULawRw 17; (2002) 26(2) Melbourne University Law Review 285
[*] BEc, LLB (Hons) (Monash), LLM (Hons) (Cantab), PhD candidate (Monash); Lecturer in Law, Faculty of Law, Monash University; Associate Director, Castan Centre for Human Rights Law. The author’s doctoral studies were supported by grants from the Australian Research Council and the Judicial Conference of Australia. This article is based on an earlier draft: Julie Debeljak, ‘Human Rights as Judicial Politics or Parliamentary Judgments?’ (Paper presented at the Castan Centre for Human Rights Inaugural Conference: Human Rights and Global Challenges, Melbourne, 10–11 December 2001). The author wishes to thank Professor Stephen Parker, Professor Jeff Goldsworthy, Sarah Joseph, and the anonymous referees, for their constructive comments on earlier drafts of this article.
[1] Hilary Charlesworth, ‘The Australian Reluctance about Rights’ in Philip Alston (ed), Towards an Australian Bill of Rights (1994) 21, 51.
[2] Even without a rights protection instrument, such allegations may be made. The recent exchange between the Minister for Immigration and Multicultural and Indigenous Affairs and the Chief Justice of the Federal Court of Australia is an example. The Minister’s accusation that, by reviewing the legality (scope of operation) of a privative clause within the meaning of the Migration Act 1958 (Cth) the Federal Court was attempting to deal itself back into the game, suggests a concern about judicial (rather than parliamentary) supremacy. See Benjamin Haslem, ‘Ruddock to Face Federal Court Revolt’, The Australian (Sydney), 3 June 2002, 1; Benjamin Haslem and Amanda Keenan, ‘Butt Out, Ruddock Tells Judges’, The Australian (Sydney), 4 June 2002, 1; Editorial, ‘Ruddock Cops a Judicial Press Release’, The Australian (Sydney), 4 June 2002, 10; Darrin Farrant, ‘Judges Hit Back at Ruddock’, The Age (Melbourne), 4 June 2002, 1.
[3] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 (‘Charter’) and the Human Rights Act 1998 (UK) c 42 (‘Human Rights Act’) respectively.
[4] Neil Morgan, ‘Mandatory Sentences in Australia: Where Have We Been and Where Are We Going?’ (Paper presented at the Fifth Annual Colloquium of the Judicial Conference of Australia, Uluru, 7–9 April 2001); Neil Morgan, ‘Easy Scapegoats and Simplistic Reactions: The Continuing Saga of Mandatory Sentencing’ (Paper presented at the Sixth Annual Colloquium of the Judicial Conference of Australia, Launceston, 26–8 April, 2002).
[5] See generally William Jonas (Aboriginal and Torres Strait Islander Social Justice Commissioner), Social Justice Report 2000, Report No 2/2001; Julie Debeljak, ‘Barriers to the Recognition of Indigenous Peoples’ Human Rights at the United Nations’ [2000] MonashULawRw 5; (2000) 26 Monash University Law Review 159.
[6] Of particular note is the government’s response to concern expressed about its anti-terrorism legislative package by the Senate Legal and Constitutional Legislation Committee and the general public (see Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Consideration of Legislation Referred to the Committee: Security Legislation Amendment (Terrorism) Bill 2002 [No 2], Suppression of the Financing of Terrorism Bill 2002, Criminal Code Amendment (Suppression of Terrorist Bombings) Bill 2002, Border Security Legislation Amendment Bill 2002, Telecommunications Interception Legislation Amendment Bill 2002 (2002)). The government amended this legislative package in response to the Committee’s findings. The legislation enacted to date includes Security Legislation Amendment (Terrorism) Act 2002 [No 2] (Cth), Suppression of the Financing of Terrorism Act 2002 (Cth), Criminal Code Amendment (Suppression of Terrorist Bombings) Act 2002 (Cth), Border Security Legislation Amendment Act 2002 (Cth), Telecommunications Interception Legislation Amendment Act 2002 (Cth).
[7] The acquisition of property on just terms (s 51(xxxi)), the right to trial by jury on indictment (s 80), the freedom of religion (s 116), and the right to be free from discrimination on the basis of interstate residence (s 117).
[8] Eg Cheng v The Queen [2000] HCA 53; (2000) 203 CLR 248; King v Jones [1972] HCA 44; (1972) 128 CLR 221.
[9] For example, the separation of judicial power from executive and legislative power (Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245), intergovernmental immunities, and the implied freedom of political speech (Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520). See also Jeremy Kirk, ‘Constitutional Implications (II): Doctrines of Equality and Democracy’ [2001] MelbULawRw 2; (2001) 25 Melbourne University Law Review 24 and Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ [2001] MelbULawRw 13; (2001) 25 Melbourne University Law Review 374.
[10] For judicial statements on an implied right to legal equality, see Leeth v Commonwealth (1992) 174 CLR 455 (especially Gaudron J) and Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1. For a discussion of an implied right to equality of voting power, see A-G (Cth) ex rel McKinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1, McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 and Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302.
[11] I have two concerns about the implication of a bill of rights into the Constitution. My first concern is based on the public perception of the proper role of the judiciary. Judicial introduction of human rights standards, for instance via administrative law, will cause (and has caused) controversy and may be considered an improper judicial function. Moreover, I am concerned that judicial introduction of human rights standards will be piecemeal and not comprehensive, with some rights being readily compatible with our existing legal regime and others not being so.
[12] For a more comprehensive discussion, see Geoff Lindell, ‘The Australian Constitution: Growth, Adaptation and Conflict — Reflections about Some Major Cases and Events’ [1999] MonashULawRw 12; (1999) 25 Monash University Law Review 257; Leslie Zines, Constitutional Change in the Commonwealth (1991) 52, discussed in Timothy Jones, ‘Fundamental Rights in Australia and Britain: Domestic and International Aspects’ in Conor Gearty and Adam Tomkins (eds), Understanding Human Rights (1996) 91, 100; George Winterton, ‘Extra-Constitutional Notions in Australian Constitutional Law’ (1986) 16 Federal Law Review 223, 235; H P Lee, ‘The Australian High Court and Implied Fundamental Guarantees’ [1993] Public Law 606, 627–8.
[13] The Commonwealth regime is made up of the Racial Discrimination Act 1975 (Cth) (to implement the International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969) (‘Racial Discrimination Convention’)); the Sex Discrimination Act 1984 (Cth) (to implement the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (‘CEDAW’)); the Disability Discrimination Act 1992 (Cth) (to implement the International Labour Organisation’s Convention Concerning Discrimination in Respect of Employment and Occupation, opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960) and the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’)); and the Human Rights and Equal Opportunity Commission Act 1986 (Cth).
[14] Charlesworth, above n 1, 40.
[15] At the expiration of Mick Dodson’s term as Social Justice Commissioner in January 1998, Zita Antonios was appointed as acting Social Justice Commissioner, followed by the appointment of William Jonas as Social Justice Commissioner in April 1999.
[16] In August 1998, the Committee on the Elimination of Racial Discrimination (‘CERD’) issued a ‘please explain’ request to Australia in relation to, inter alia, its changes to the functions of the Aboriginal and Torres Strait Islander Social Justice Commissioner: Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 53rd sess, Supp No 18, [22], UN Doc A/53/18 (1998). Australia submitted an extensive report: CERD, Additional Information Pursuant to Committee Decision: Australia, UN Doc CERD/C/347 (1999). After considering Australia’s response, CERD expressed concern about Australia’s proposed changes to the overall structure of the Human Rights and Equal Opportunity Commission (‘HREOC’), particularly the abolition of the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner and the assignment of those functions to a generalist Deputy President: CERD, Decision 2(54) on Australia: Concluding Observations/Comments, [6]–[8], UN Doc CERD/C/54/
Misc.40/Rev.2 (1999). The Australian government rejected the views of CERD. In consequence, CERD decided to continue to consider the matters whilst considering Australia’s 10th, 11th and 12th periodic reports during CERD’s 56th session in March 2000 (Report of the Committee on the Elimination of Racial Discrimination, UN GAOR, 54th sess, Supp No 18, [23], UN Doc A/54/18 (1999)). In its concluding observations, CERD expressed concern over the changes to the role and function of the Aboriginal and Torres Strait Islander Social Justice Commissioner which may limit the capacity of the Commissioner to address the full range of issues relating to indigenous peoples: CERD, Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia, [11], UN Doc CERD/C/304/Add.101 (2000).
[17] HREOC is semi-independent: see generally Human Rights and Equal Opportunity Commission Act 1986 (Cth) and HREOC, ‘Australian Human Rights and Equal Opportunity Commission: About the Commission’ (2002) <http://www.hreoc.gov.au/about_the_commission/index.html> at 20 July 2002. HREOC is funded by the executive arm of government, but it is free to criticise the executive. The amount of funding impacts on the quantity and quality of the work HREOC can undertake. A funding cut to HREOC in the late 1990s resulted in fewer commissioners, staff and resources to undertake its work. For example, although HREOC has five main areas of interest (sex discrimination, disability discrimination, race discrimination, social justice for Aboriginal and Torres Strait Islanders, and human rights) there are only three Commissioners, two of whom have responsibility for two portfolios. The position of President of the Commission was retained.
[18] Including the ICCPR; the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’); the Racial Discrimination Convention; CEDAW; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’); and the Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990). The Howard Government recently ratified the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 37 ILM 999 (entered into force 1 July 2002) (‘Rome Statute’). Australia signed the Rome Statute on 12 December 1998 and ratified it on 1 July 2002. Australia’s obligations under the Rome Statute were incorporated into domestic law by the International Criminal Court Act 2002 (Cth) and the International Criminal Court (Consequential Amendments) Act 2002 (Cth).
[19] The Constitution empowers the executive to enter into treaties under s 61; but it is the Commonwealth Parliament that is empowered to incorporate these treaties into domestic law under s 51(xxix), a provision which reflects the broader notion that it is Parliament (not the executive) which is the primary law-maker in Australia: see generally Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273. For examples of international obligations that have been incorporated into domestic law, see above n 13.
[20] The First Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976) (‘First Optional Protocol’) allows individual complaints to be made under the ICCPR. Australia ratified the First Optional Protocol in September 1991. Article 22 of the CAT also allows states to submit to its individual complaints jurisdiction; Australia has done so.
[22] CERD, Decision 2(54) on Australia: Concluding Observations/Comments, [6]–[8], UN Doc CERD/C/54/Misc.40/Rev.2 (1999). As mentioned in above n 16, this view of the Committee was formed after a ‘please explain’ was issued to the Australian government between reporting times: CERD, Decision 1(53) on Australia, [22], UN Doc CERD/A/53/18 (1998). In fact, the government had not submitted its 10th, 11th or 12th reports, forcing the Committee to issue the request.
[23] Daryl Williams (Attorney-General), ‘United Nations Committee Misunderstands and Misrepresents Australia’ (Press Release, 19 March 1999).
[24] The Human Rights Committee is established under Part IV of the ICCPR. Under the First Optional Protocol, individuals are able to complain to the Human Rights Committee about violations of human rights protected under the ICCPR.
[25] These figures were obtained during a meeting with the Commonwealth Attorney-General, Daryl Williams (Canberra, 27 May 2002).
[26] See Human Rights Committee, Communication No 500/1993: Australia 30/04/97, UN Doc CCPR/C/59/D/560/1993 (1997) (‘A v Australia’) (where mandatory detention of asylum-seekers was held to be arbitrary detention) and the Australian government’s response (Daryl Williams (Attorney-General) and Philip Ruddock (Minister for Immigration), ‘Australian Government Responds to the United Nations Human Rights Committee’ (Press Release, 17 December 1997)); Committee Against Torture, Communication No 120/1998: Australia 25/5/99, UN Doc CAT/C/22/D/120/1998 (1999) (‘Elmi v Australia’) (where it was held that expulsion of an asylum-seeker would violate the obligation not to expel where there are substantial grounds for believing that the asylum-seeker would be in danger of being subject to torture); Human Rights Committee, Communication No 930/2000: Australia 16/08/2001, UN Doc CCPR/C/72/
D/930/2000 (2001) (‘Winata v Australia’) (in which it was held that the deportation of the parents of a 13 year old Australian citizen amounts to an arbitrary interference with family life).
[27] Human Rights Committee, Communication No 488/1992: Australia 04/04/94, UN Doc CCPR/C/50/D/488/1992 (1994) (‘Toonen Case’).
[28] Reading this case is rather surreal. It is quite clear from the Australian government’s submissions to the Committee that it was not committed to saving the Tasmanian law, which it viewed as being out of step with the broader Australian community’s views. It was thus no surprise when the Australian government responded to the decision by enacting the Human Rights (Sexual Conduct) Act 1994 (Cth), which led to the invalidation of the Tasmanian law criminalising consensual adult homosexual activity under s 109 of the Constitution.
[29] The Howard Government’s ratification of the Rome Statute was subject to various declarations, some procedural in nature (such as the declaration that Australia will not surrender any suspect until it has had the opportunity to investigate and decide whether or not it will prosecute) and some substantive in nature (such as the declaration that Australia will interpret genocide, crimes against humanity, war crimes and crimes of aggression according to its domestic law). The permissibility of such declarations remains in doubt. It is for the International Criminal Court to assess whether these declarations are, in fact, reservations and thus impermissible under art 124 of the Rome Statute (see also Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331, art 19 (entered into force 27 January 1980)). In terms of its impact on Australian attitudes to human rights, the picture is unclear. The concern that international human rights obligations undermine Australia’s sovereignty was sympathetically argued by close to half of Howard’s government during Cabinet and party debate on the ratification of the Rome Statute, signalling a resistance to international interference. Moreover, the Rome Statute deals with egregious breaches of human rights (genocide, war crimes and crimes against humanity, with crimes of aggression soon to be defined and made applicable), such that it may have little impact on the government’s attitude to the multitude of its other human right obligations. See also Joint Standing Committee on Treaties, Parliament of Australia, Report 45: The Statute of the International Criminal Court (2002).
[30] Norberto Bobbio, The Age of Rights (Allan Cameron trans, 1996 ed) 26 [trans of: L’eta dei diritti]. Australia’s refusal to sign the Optional Protocol to the Convention on the Elimination of Discrimination against Women, GA Res A/54/4, UN GAOR, 54th sess, Annex, Supp No 49, UN Doc A/54/49 (2000), which would allow individual complaints to that treaty body, is a poignant example of this.
[31] Opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), commonly known as the European Convention on Human Rights (‘ECHR’).
[32] Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (2000) 214–15.
[33] See generally Beth Gaze and Melinda Jones, Law, Liberty and Australian Democracy (1990); Jack Donnelly, International Human Rights (2nd ed, 1998).
[34] This is a consequentialist view of rights (that is, we deny government some choices because the outcomes of such denial are worth it) rather than a deontological view (we pursue the protection of rights because of the intrinsic worth of rights). Moore considers that the utilitarian nature of the legislature requires a rights-based approach to democracy: Michael S Moore, ‘Natural Rights, Judicial Review, and Constitutional Interpretation’ in Jeffrey Goldsworthy and Tom Campbell (eds), Legal Interpretation in Democratic States (2002) 207. He argues that human rights are better justified on rights-based theories (ie that judicial enforcement of bills of rights is justified because judges are likely to give greater protection to certain rights than a utilitarian legislature would). This is still a consequentialist argument.
[35] Lord Bingham, ‘The European Convention on Human Rights: Time to Incorporate’ in Richard Gordon and Richard Wilmot-Smith (eds), Human Rights in the United Kingdom (1996) 1, 10. Any number of human rights instruments, including the ICCPR and the Canadian Charter, could be substituted for the reference to the ECHR.
[36] See generally Rysard Piotrowicz and Stuart Kaye, Human Rights in International and Australian Law (2000) ch 1; Henry J Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (2000) ch 2.
[37] Klug, above n 32, 10–12. See Francesca Klug, Keir Starmer and Stuart Weir, The Three Pillars of Liberty: Political Rights and Freedoms in the United Kingdom (1996) 9: ‘as the continuing interpretation of the European Convention has shown, human rights evolve as society evolves — in the same way as the common law itself adapts over time’.
[38] Jack Donnelly, International Human Rights (2nd ed, 1998) 32–5; Bobbio, ‘The Age of Rights’, above n 30, 10.
[39] See above n 18 and accompanying text.
[40] ‘Mode’ of protection implies the importance of two related sets of choices: whether the rights are protected via constitutional or non-constitutional means; and whether it is the executive, legislature or judiciary (or some combination thereof) that should define the rights.
[41] Civil, political, economic, social, cultural, developmental, environmental and other collective rights are indivisible and interdependent. Any human rights package must comprehensively protect and promote all categories of human rights for it to be effective. Particularly in Australia, a bill of rights should contain some recognition of the rights of indigenous peoples, which must include the right to self-determination and the economic, social and cultural rights that flow from this. The linguistic rights of the Canadian Charter are an example of constitutionally entrenched human rights specifically pertaining to indigenous peoples. The broader settlement of the rights of indigenous peoples in Canada did not take place within the Charter; rather, the rights of indigenous peoples are included in s 35 of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11. The symbolism of the relegation of the bulk of the rights of indigenous peoples from the Charter to the broader Constitution has caused much controversy in Canada, largely due to the similarly controversial limiting of the terms of s 35. In Australia, indigenous peoples’ rights should be protected within a bill of rights proper, and the rights protected must be broad enough to counter the dispossession, discrimination and inequalities suffered. This article will focus primarily on civil and political rights for three pragmatic reasons: firstly, the length of the article requires it; secondly, the Canadian and British models being studied focus on civil and political rights (with some exceptions, which will be highlighted where relevant throughout the article); and thirdly, in the current Australian political climate, it is very unlikely that a bill of rights that included second and third generation rights would be adopted.
[42] Mauro Cappelletti, ‘Repudiating Montesquieu? The Expansion and Legitimacy of “Constitutional Justice”’ (1985) 35 Catholic University Law Review 1, 28 quoted in Justice R D Nicholson, ‘Judicial Independence and Accountability: Can They Co-Exist?’ (1993) 67 Australian Law Journal 404, 410–11. See also Dennis Davis, Matthew Chaskalson and Johan de Waal, ‘Democracy and Constitutionalism: The Role of Constitutional Interpretation’ in Dawid van Wyk et al (eds), Rights and Constitutionalism: The New South African Legal Order (1994) 1, 1–2:
[The courts have a] custodial function of preserving the decisions of ‘we the people’ against the potential undermining thereof by the government. When ‘we the people’ have formulated a constitutional choice, it binds the more limited authority of the government ... majoritarianism has no exclusive claim on democracy. ... [T]here are certain characteristics to the democratic enterprise which cannot be amended or destroyed even by a majority government.
[43] ‘[D]emocracy is not a unique fundamental value but rather one that must be understood in the light of a very limited list of other such values’: Mac Darrow and Philip Alston, ‘Bills of Rights in Comparative Perspective’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 465, 496.
[44] ECHR, opened for signature 4 November 1950, 213 UNTS 222, preamble (entered into force 3 September 1953).
[45] Norberto Bobbio, The Future of Democracy: A Defence of the Rules of the Game (Roger Griffin trans, 1987 ed) 25–6 [trans of: Il futuro della democrazia].
[46] Case of Young, James and Webster (1981) 44 Eur Court HR (ser A) 25.
[47] Handyside Case (1976) 24 Eur Court HR (ser A) 23; Dudgeon Case (1981) 45 Eur Court HR (ser A) 21–2.
[48] Golder Case (1975) 18 Eur Court HR (ser A) 16–17; Case of Klass and Others (1978) 28 Eur Court HR (ser A) 22.
[49] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 1.
[50] R v Oakes [1986] 1 SCR 103, 136 (Dickson CJ).
[51] Ibid.
[52] In the words of the ECHR, opened for signature 4 November 1950, 213 UNTS 222, preamble (entered into force 3 September 1953).
[53] Martti Koskenniemi, ‘“Intolerant Democracies”: A Response’ (1996) 37 Harvard Law Journal 231, 234 quoted in Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (2000) 49. See also Bobbio, ‘The Future of Democracy’, above n 45, 18; Tom Campbell, ‘Judging in a Democracy’ (Paper presented at the Second Annual Symposium of the Judicial Conference of Australia, Sydney, 8–9 November 1997) [8]–[9].
[54] Marks, above n 53, 106–7.
[55] See generally ibid 63–7; Janet Hiebert, Limiting Rights: The Dilemma of Judicial Review (1996) 118.
[56] If it were considered an end in itself, Marks argues that this would be a disappointingly low-demanding view of democracy. Current democratic theory accepts high levels of citizen passivity. It utilises the existing liberal institutions without addressing the limitations of those institutions. In particular, she queries whether our institutions can function without civil and political rights, and what role the separation of powers should play. Further, democratic theory is yet to address the enormous amounts of unaccountable power being exercised over the lives of citizens by the modern state. These shortfalls in current standards of democracy manifest in the contemporary melancholy about democracy and its ability to ensure self-rule and political participation. See Marks, above n 53, 147–51.
[57] Ibid 109–10.
[58] Ibid 116.
[59] Ibid 149.
[60] Campbell, above n 53, [44].
[61] See Jeremy Waldron, ‘Legislation by Assembly’ in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy, and Legal Positivism (2000) 251. Waldron suggests that we should ‘not be fooled into thinking that calmness and solemnity are necessarily the mark of a good polity, and noise and conflict a symptom of political pathology’: at 267. In other words, he argues that noise and conflict are signs of a healthy polity and that disagreement is the normal background to law formation.
[62] Cass Sunstein, Legal Reasoning and Political Conflict (1996) 45.
[63] Sunstein developed this notion of incompletely theorised agreements: ibid 44–6.
[64] Ibid.
[65] For instance, we can agree to live by the rule of law, but we cannot agree what this means. In the context of rights, most people would agree that cruel, unusual and inhuman treatment is inappropriate, for example, but will disagree about what constitutes cruel, unusual and inhuman treatment.
[66] Marks, above n 53, 116. See also Hiebert, Limiting Rights, above n 55, 118: ‘But public debate is not the only goal of a democratic polity. Policy choices should respect fundamental rights, those contained explicitly in the Charter and others related to its core values.’
[67] The regional conventions and domestic bills of rights also demonstrate the dependency of democracy on human rights; for example, the ECHR, the American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978) (‘ACHR’), and the African [Banjul] Charter on Human and Peoples’ Rights, opened for signature 27 June 1981, 21 ILM 58 (entered into force 21 October 1986) (‘African Charter’), and the Canadian Charter.
[68] The right to self-determination is protected under the common art 1 in the ICCPR and ICESCR. As mentioned, self-determination includes an external element: the right of a people to freely determine its political status and place in the international community. Self-determination also includes an internal element: the right of all peoples to freely pursue their economic, social and cultural development without outside interference. The right to self-determination is thus relevant to civil, political, economic, social, and cultural rights. In other words, these rights, as well as other collective rights, are interdependent and indivisible. Comprehensive protection and promotion of human rights requires the protection and promotion of all categories of human rights. Human rights and democracy cannot function in any society in which economic, social and cultural rights are denied. Hence, although this article focuses primarily on civil and political rights, any Australian bill of rights should consider and include protection of economic, social and cultural rights. This is particularly important for Australian indigenous peoples, whose right to self-determination has been, and continues to be, denied.
[69] Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 American Journal of International Law 46; Anne-Marie Burley (later Anne-Marie Slaughter), ‘Toward an Age of Liberal Nations’ (1992) 33 Harvard International Law Journal 393.
[70] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 25 (entered into force 23 March 1976), as well as the first Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 213 UNTS 262, art 3 (entered into force 18 May 1954); Charter of the Organization of American States art 5; African Charter, opened for signature 27 June 1981, 21 ILM 58, art 13 (entered into force 21 October 1986).
[71] For freedom of expression, see ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 19 (entered into force 23 March 1976), as well as the Universal Declaration of Human Rights, GA Res 217A, 3 UN GAOR (183rd plen mtg), art 19, UN Doc A/Res/217A (1948); ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 10 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, art 13 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58, art 9 (entered into force 21 October 1986). For freedom of assembly and association, see ICCPR, opened for signature 19 December 1966, 999 UNTS 171, art 22 (entered into force 23 March 1976), as well as the Universal Declaration of Human Rights, GA Res 217A, 3 UN GAOR (183rd plen mtg), art 20, UN Doc A/Res/217A (1948); ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 11 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 15–16 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58, arts 10–12 (entered into force 21 October 1986).
[72] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 6–10, 14 (entered into force 23 March 1976), as well as ECHR, opened for signature 4 November 1950, 213 UNTS 222, arts 5–7 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 4–9 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58 arts 6–7 (entered into force 21 October 1986).
[73] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 19–22 (entered into force 23 March 1976), as well as ECHR, opened for signature 4 November 1950, 213 UNTS 222, arts 10–11 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 13, 15, 16 (entered into force 18 July 1978); African Charter, opened for signature 27 June 1981, 21 ILM 58, arts 9–12 (entered into force 21 October 1986).
[74] See ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 2, 3, 18, 26, 27 (entered into force 23 March 1976), as well as ECHR, opened for signature 4 November 1950, 213 UNTS 222, arts 9, 14 (entered into force 3 September 1953); ACHR, opened for signature 22 November 1969, 1144 UNTS 123, arts 12, 24 (entered into force 18 July 1978); and the African Charter, opened for signature 27 June 1981, 21 ILM 58, arts 2, 3, 8, 19, 28 (entered into force 21 October 1986).
[76] If governments are required to justify laws as per constitutional rights, ‘[a]ny law that burdened or withheld a benefit from an individual or group [would need to] meet the standards of justice which the principles of rationality and proportionality imply’: David Beatty, ‘Human Rights and the Rules of Law’ in David Beatty (ed), Human Rights and Judicial Review: A Comparative Perspective (1994) 1, 23.
[77] Thus, voting rights are explicitly guaranteed to be without distinction; for example, when arts 2, 3 and 25 of the ICCPR are read together.
[78] For a more complete discussion of the principle of democratic inclusion, in particular, its substantive nature and the ramifications thereof, see Julie Debeljak, ‘Rights and Democracy: A Reconciliation of the Institutional Debate’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Human Rights Protections: Boundaries and Challenges (forthcoming, 2002).
[79] Such as fundamental freedoms, democratic rights, mobility rights, legal rights, equality rights, official language rights, and minority language educational rights: see Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, ss 2–23.
[80] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 52. ‘The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect’: s 52(1).
[81] To enact legislation containing a s 33 override, a simple majority is needed. Section 33(2) states that legislation (or provisions thereof) that is subject to a ‘notwithstanding’ declaration operates ‘as it would have but for the provision of this Charter referred to in the declaration.’ Sub-sections 33(3)–(5) provide that notwithstanding provisions are subject to a sunset clause of five years, after which date the legislature can re-enact the declaration, with all subsequent re-enactments also being subject to the five year sunset clause. Certain rights are exempted from the operation of s 33 and, thus, cannot be the subject of the override provision. These are the democratic rights (ss 3–5), mobility rights (s 6), and language rights (ss 16–23). A further limitation is that the override clause cannot be applied retrospectively: A-G (Quebec) v La Chaussure Brown’s Inc [1988] 2 SCR 712.
[82] The text of these articles is reproduced in Schedule 1 of the Human Rights Act 1998 (UK) c 42. It also incorporates various articles from the (first) Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 20 March 1952, 213 UNTS 262 (entered into force 18 May 1954) and Protocol Number Six to the ECHR, opened for signature 28 April 1983, ETS 114 (entered into force 1 March 1985).
[83] Human Rights Act 1998 (UK) c 42, s 3. See also United Kingdom, Rights Brought Home: The Human Rights Bill (1997) [2.7] (‘Human Rights White Paper (UK)’).
[84] Human Rights Act 1998 (UK) c 42, s 6.
[85] Section 3 of the Human Rights Act provides that the validity, continuing operation or enforcement of any primary legislation that is incompatible with the Convention rights is not affected by the incompatibility. Thus, the doctrine of implied repeal is expressly excluded. In other words, legislation that predates the Human Rights Act, and that is incompatible with the ECHR rights protected under the Human Rights Act, is not invalid.
[86] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 38.
[87] Amendment may be initiated by the Senate or House of Commons of the federal legislative body, or by the legislative assembly of a province: Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 46(1).
[88] The two-thirds condition means that at least seven of the 10 provinces must agree to the amendment. The 50 per cent requirement, in effect, means that either Ontario or Quebec must agree, since the combined population of Ontario (9 million) and Quebec (6.5 million) is more than 50 per cent of the population of Canada (25 million): Peter Hogg, Constitutional Law of Canada (4th ed, 1997) 112–13.
[89] If more than three provinces were to opt out, the amendment could not pass under Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 38(1). A province may ‘opt out’ under s 38(3) if an amendment ‘derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province’: Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 38(2).
[90] Darrow and Alston, above n 43, 497 (citations omitted).
[91] Mark Tushnet, ‘An Essay on Rights’ (1984) 62 Texas Law Review 1363, 1371.
[92] Ibid.
[93] According to customary international law, the only rights that are absolute are the right to be free from genocide, slavery and servitude, and systematic racial discrimination: American Law Institute, Restatement of the Law (Third): The Foreign Relations Law of the United States (1987) vol 2, 161.
[94] See ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 5 (entered into force 3 September 1953); ICCPR, opened for signature 19 December 1966, 999 UNTS 171, arts 9, 14 (entered into force 23 March 1976); Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, ss 7–14.
[95] ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 2 (entered into force 3 September 1953).
[96] For example, art 9(2) states that:
Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
[97] See generally The Sunday Times Case (1979) 30 Eur Court HR (ser A) 31; Handyside Case (1976) 24 Eur Court HR (ser A) 23; Case of Goodwin v United Kingdom (1996) II Eur Court HR 483, 500; Case of Silver and Others (1983) 61 Eur Court HR (ser A) 33.
[98] The relevant organs are the European Court of Human Rights, the European Commission of Human Rights (now defunct), and the Committee of Ministers of the Council of Europe. This is only a duty so far as, in the opinion of the court, the European jurisprudence is relevant to the proceedings.
[99] Michael Beloff, ‘What Does It All Mean?’ in Lammy Betten (ed), The Human Rights Act 1998: What It Means (1999) 11, 33.
[100] Tyrer Case (1978) 26 Eur Court HR (ser A) 15.
[101] In the preamble to the ECHR, the states reaffirm
their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.
The Soering Case (1989) 161 Eur Court HR (ser A) 34 confirmed that the objects of the ECHR include the protection of individual human rights.
[102] Handyside Case (1976) 24 Eur Court HR (ser A) 23; Dudgeon Case (1981) 45 Eur Court HR (ser A) 21–2.
[103] Golder Case (1975) 18 Eur Court HR (ser A) 16–17; Case of Klass and Others (1978) 28 Eur Court HR (ser A) 22.
[104] Case of Young, James and Webster (1981) 44 Eur Court HR (ser A) 25.
[105] Marckx Case (1979) 31 Eur Court HR (ser A) 14; Artico Case (1980) 37 Eur Court HR (ser A) 16; Soering Case (1989) 161 Eur Court HR (ser A) 34. Accordingly, any interference with the exercise of ECHR rights cannot negate the very existence of the right or remove its effectiveness: Case of Mathieu-Mohin and Clerfayt (1987) 113 Eur Court HR (ser A) 23; Ashingdane Case (1985) 93 Eur Court HR (ser A) 24–5; Winterwerp Case (1979) 33 Eur Court HR (ser A) 24.
[106] Adolf Case (1982) 49 Eur Court HR (ser A) 15; Case of Duinhof and Duif (1984) 79 Eur Court HR (ser A) 15–16.
[107] Moreover, limitations are subject to the ECHR, opened for signature 4 November 1950, 213 UNTS 222, art 14 (entered into force 3 September 1953). Thus, a limitation must not be discriminatory, in the sense that any distinction must have an objective and reasonable justification, and must be proportional.
[108] Case of Silver and Others (1983) 61 Eur Court HR (ser A) 33.
[109] The Sunday Times Case (1979) 30 Eur Court HR (ser A) 31. Moreover, the common law may be of sufficient precision for this purpose (statutory law or regulation not being essential).
[110] ‘It is not difficult for a country facing an allegation of the breach of human rights to find a reason relevant to any case’: John Wadham and Helen Mountfield, Blackstone’s Guide to the Human Rights Act 1998 (1999) 13.
[111] The Sunday Times Case (1979) 30 Eur Court HR (ser A) 35–6; Handyside Case (1976) 24 Eur Court HR (ser A) 22; Goodwin v United Kingdom (1996) II Eur Court HR 483, 500.
[112] The concept of proportionality has already made its way into British jurisprudence via European Community law: R v Secretary of State for Employment; Ex parte Equal Opportunities Commission [1994] UKHL 2; [1995] 1 AC 1.
[113] See Soering Case (1989) 161 Eur Court HR (ser A) 35.
[114] Ibid.
[115] The s 19(1) statement must be made before the second reading speech. Under s 19(2), both statements must be made in writing and published in such manner as the Minister making it considers appropriate.
[116] Human Rights White Paper (UK), above n 83, [3.3].
[117] Ibid [2.7]. The interpretative obligation applies to primary and subordinate legislation whenever enacted. This ‘will prove a strong form of incorporation’: United Kingdom, Parliamentary Debates, House of Lords, 3 November 1997, col 1230 (Lord Irvine, Lord Chancellor). This obligation goes well beyond the pre-existing interpretative rule to construe any ambiguous legislation in a manner compatible with relevant treaty obligations: see Beloff, above n 99, 29.
[118] Lord Steyn, ‘Incorporation and Devolution — A Few Reflections on the Changing Scene’ (1998) 3 European Human Rights Law Review 153, 155.
[119] Human Rights White Paper (UK), above n 83, [2.7].
[120] United Kingdom, Parliamentary Debates, House of Lords, 18 November 1997, col 535 (Lord Irvine, Lord Chancellor) (emphasis added). Consider also Lord Lester:
The courts will no doubt strive as far as is judicially possible to save legislation from having to be declared incompatible. ... The courts will do so by construing existing and future legislation as intended to provide the necessary safeguards to ensure fairness, proportionality and legal certainty as required by the convention.
United Kingdom, Parliamentary Debates, House of Lords, 3 November 1997, col 1240.
[121] United Kingdom, Parliamentary Debates, House of Commons, 3 June 1998, col 421–2 (Jack Straw, Secretary of State for the Home Department) (emphasis added). The government did not want to create a subjective interpretative test, so it avoided the ‘reasonable’ standard. Rather, it choose the term ‘possible’: ‘What is the possible interpretation? Let us look at this set of words and the possible interpretations’: at col 423.
[122] The Home Secretary stated that ‘it is not our intention that the courts, in applying [s 3], should contort the meaning of words to produce implausible or incredible meanings.’ United Kingdom, Parliamentary Debates, House of Commons, 3 June 1998, col 422 (Jack Straw, Secretary of State for the Home Department).
[123] Nor does a declaration affect the validity, continuing operation or enforcement of any subordinate legislation if (disregarding the possibility of revocation) primary legislation prevents removal of the incompatibility under s 3(2). Incompatible subordinate legislation will be held ultra vires unless the parent legislation requires the incompatibility. In other words, incompatible subordinate legislation will not stand unless Parliament, the primary legislator, has required the incompatibility in primary legislation. Incompatible laws cannot be sanctioned by a delegated law-maker, nor should incompatible laws bypass the approval of the legislature. This requirement also ensures that the courts do not indirectly undermine the will of Parliament. If the courts were empowered to strike down subordinate legislation that was supported by primary legislation, the courts would effectively be challenging the primary legislation. The Human Rights Act ensures that indirect, as well as direct, affronts to parliamentary sovereignty by the courts do not occur.
[124] Anthony Lester, ‘Taking Human Rights Seriously’ in Richard Gordon and Richard Wilmot-Smith (eds), Human Rights in the United Kingdom (1996), 99. See also Anthony Lester and David Pannick, ‘The Human Rights Act 1998’ in Lord Lester of Herne Hill and David Pannick (eds), Human Rights Law and Practice (1999) 15, 18.
[125] This was first outlined in the case of Hunter v Southam Inc [1984] 2 SCR 145, but the most often-quoted case on the point is R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295 (‘Big M Drug Mart Case’).
[126] Big M Drug Mart Case 1985 CANLII 69; [1985] 1 SCR 295, 344. Dickson J also identified sources that were to be used in interpretation as being the character and objectives of the Charter, its historical origins, the language of the specific right or freedom, and the meaning and purpose of other Charter rights textually associated with the right or freedom in question: at 344.
[127] Robert Sharpe, ‘The Impact of a Bill of Rights on the Role of the Judiciary: A Canadian Perspective’ in Philip Alston (ed), Promoting Human Rights through Bills of Rights: Comparative Perspectives (1999) 431, 445.
[128] [1986] 1 SCR 103, 138 citing Big M Drug Mart Case 1985 CANLII 69; [1985] 1 SCR 295, 352.
[129] R v Oakes [1986] 1 SCR 103, 139.
[130] This test was intended to ‘integrate a normative analysis of the fundamental values underlying Canada’s free and democratic society with a consistent and predictable method of balancing those fundamental values’: Leon Trakman, William Cole-Hamilton and Sean Gatien, ‘R v Oakes 1986–1997: Back to the Drawing Board’ (1998) 36 Osgoode Hall Law Journal 83, 93–4.
[131] R v Oakes [1986] 1 SCR 103, 138. The initial assessment of the importance of the object of the legislation anchors the proportionality test that follows. Objectives that are found to be pressing and substantial ‘provide a fixed reference point against which the reasonableness of alternate means can be measured and the weight of the restrictions on constitutional guarantees can be balanced and compared’: David Beatty, Talking Heads and the Supremes: The Canadian Production of Constitutional Review (1990), 180–1.
[132] R v Oakes [1986] 1 SCR 103, 139.
[133] Ibid.
[135] Ibid 889 (emphasis omitted). The Canadian courts have differentiated between the standard of justification required under s 1 in certain classes of cases, essentially only requiring a reasonable basis upon which to satisfy the proportionality test. This has happened in: non-criminal cases (eg McKinney v University of Guelph [1990] 3 SCR 229); cases where social and economic rights are at issue (eg McKinney v University of Guelph [1990] 3 SCR 229, 304–5); situations of competing individual rights, as opposed to individuals as against the state (eg A-G of Quebec v Irwin Toy Ltd [1989] 1 SCR 927); and when there are threats to the periphery of the right or freedom, as opposed to matters at the core of the right (eg A-G of Quebec v Irwin Toy Ltd (1989) 58 DLR (4th) 577). See generally Janet L Hiebert, ‘Policy Making in a Different Venue: Judicial Discretion, Normative Preferences and Uncertainty Masquerading as Principled, Objective Criteria’ (Paper presented at the Centre for Public Policy Workshop on The Changing Role of the Judiciary, Melbourne, 7 June 1996).
[136] For those in favour of the institutional dialogue argument, see Trakman, Cole-Hamilton and Gatien, above n 130; Hiebert, Limiting Rights, above n 55; Sharpe, above n 127; Martha Jackman, ‘Protecting Rights and Promoting Democracy: Judicial Review under Section 1 of the Charter’ (1996) 34 Osgoode Hall Law Journal 661. Of course, there is criticism of the Supreme Court’s use of s 1: see Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2nd ed, 2001) 38–42; Patrick Monahan, Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada (1987) 51–71.
[137] Peter Hogg and Allison Bushell, ‘The Charter Dialogue between Courts and Legislatures (or Perhaps the Charter of Rights Isn’t Such a Bad Thing after All)’ (1997) 35 Osgoode Hall Law Journal 75.
[138] Ibid 82.
[139] Ibid 98.
[140] Ibid 79–80.
[141] Of the 13 cases without legislative sequels, two have been the subject of proposed legislation, and three were decided only within the last two years: ibid 97.
[142] Ibid.
[143] Out of the 52 cases that triggered a response, in 39 cases the response came within two years of the invalidation of the law (75 per cent); in nine cases the response came within two and five years (17 per cent); and in only four cases did the response take more than five years (8 per cent) (on two occasions it took the Quebec government over two years to respond to a judicial decision, and on another occasion it took more than five years): ibid 99.
[144] Ibid 81.
[145] Ibid 105 (citation omitted). Note also the response: Christopher Manfredi and James Kelly, ‘Six Degrees of Dialogue: A Response to Hogg and Bushell’ (1999) 37 Osgoode Hall Law Journal 513. Hogg and Bushell adequately respond to the criticisms of Manfredi and Kelly in Peter Hogg and Allison Thornton, ‘Reply to “Six Degrees of Dialogue”’ (1999) 37 Osgoode Hall Law Journal 529.
[146] Another feature of the Charter that facilitates dialogue is s 15 dealing with rights to equality. Usually laws that violate equality rights are under-inclusive, in that the group suffering the disadvantage has been excluded from the receipt of some benefit or protection. Legislatures typically respond by extending the benefit or protection of the law to the excluded group. Occasionally, the legislature decides to reduce the benefit or protection available to all groups, both those previously included and excluded. This latter response is equally valid, as the Charter equality rights accommodate ‘different legislative choices ... such that democratically elected bodies are still ultimately responsible for setting their own budgetary priorities, albeit in a way that does not discriminate against disadvantaged groups’: Hogg and Bushell, ‘The Charter Dialogue’, above n 137, 91. Hogg and Bushell also identify some factors that constrain the democratic process, but conclude that despite the constraints, the final decision is democratic. Some constraints are, for example, that before the Charter was introduced an issue may have gone untouched by the legislature for fear of electoral backlash. However, under the Charter, a court decision will force the legislature to act. In addition, the court decision may heavily influence the precise terms of the new legislation. Also, the legislature may have to account more for Charter values than it prefers to. See Hogg and Bushell, ‘The Charter Dialogue’, above n 137, 80.
[147] It will be recalled that a limitation will also need to be prescribed by law. This element tends to be of little consequence to this debate.
[148] Trakman, Cole-Hamilton and Gatien, above n 130, 95.
[149] Ibid 98.
[150] See above nn 128–9 and accompanying text.
[151] Trakman, Cole-Hamilton and Gatien, above n 130, 100.
[152] Ibid. Trakman, Cole-Hamilton and Gatien consider this unsatisfactory, because findings that the objectives are pressing and substantial, and that the law is the least restrictive means to achieve the objectives, do not prove that the benefits of the law outweigh its detriment: at 100–3.
[153] The constitutional norms ‘generally operate at the margins of legislative policy, affecting issues of process, enforcement, and standards, all of which can accommodate most legislative objectives’: Hogg and Thornton, above n 145, 534.
[154] See Hiebert, Limiting Rights, above n 55, 151–5; Sharpe, above n 127, 444–51; Jackman, above n 136, 675. According to Jackman, s 1 ‘provides a crucial opportunity to hold legislatures to account for decisions which result from majoritarian biases and other forms of malfunctioning within the political discourse’: at 680. Jackman also argues that reliance on the minimal impairment test under s 1 enhances democracy, by requiring ‘a rigorous and principled application of s 1 ... without prejudgment as to whether any particular degree of judicial deference is owing to any particular form of legislation’: at 680.
[155] David Beatty, ‘The Canadian Charter of Rights: Lessons and Laments’ in Gavin W Anderson (ed), Rights and Democracy: Essays in UK–Canadian Constitutionalism (1999) 10.
[156] Hiebert, Limiting Rights, above n 55, 155.
[157] Beatty, ‘Lessons and Laments’, above n 155, 26.
[158] Human Rights Act 1998 (UK) c 42, s 4(6). In other words, the judge must apply the incompatible law in the case at hand.
[159] Human Rights Act 1998 (UK) c 42, s 4(5). It also includes: the Judicial Committee of the Privy Council; the Court-Martial Appeal Court; in Scotland, the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session; and, in England and Wales or Northern Ireland, the High Court or the Court of Appeal. ‘The power is so confined because of the constitutional importance of such a declaration, and also because the government did “not believe that [criminal] trials should be upset, or potentially upset, by declarations of incompatibility”’: Lester and Pannick, above n 124, 27, quoting United Kingdom, Parliamentary Debates, House of Lords, 18 November 1997, col 551 (Lord Irvine, Lord Chancellor). A decision by the High Court or Court of Appeal making, or refusing to make, a declaration of incompatibility will itself be subject to appeal: Human Rights White Paper (UK), above n 83, [2.9].
[160] Human Rights White Paper (UK), above n 83, [2.10].
[161] United Kingdom, Parliamentary Debates, House of Commons, 21 October 1998, col 1306 (Jack Straw, Secretary of State for the Home Department).
[162] Human Rights Act 1998 (UK) c 42, s 11.
[163] Human Rights White Paper (UK), above n 83, [2.13].
[164] Between October 2000 and March 2001, a total of 107 cases before the English and Welsh courts considered the Human Rights Act. In only three cases was a declaration of incompatibility made. Action taken under primary or subordinate legislation was found to be incompatible on four occasions. (A right to privacy has been developed under the existing common law confidentiality principles, and the Human Rights Act has been held to have a horizontal effect, that is, it effects the legal relationship between citizens, rather than just the vertical legal relationship between citizens and the state.) It is too early to draw conclusion from these figures, but they are interesting nonetheless. The Human Rights Act Research Unit at King’s College London is undertaking a monitoring task of all Human Rights Act decisions in the English and Welsh courts. The results are to be published periodically in the European Human Rights Law Review. The figures stated here are based on the two reviews published at the time of writing: Elena Martin Salgado and Claire O’Brien, ‘Table of Cases under the Human Rights Act’ (2001) 2 European Human Rights Law Review 181; Elena Martin Salgado and Claire O’Brien, ‘Table of Cases under the Human Rights Act’ (2001) 4 European Human Rights Law Review 376.
[165] It should be noted that ‘regular’ remedies are also available under the Human Rights Act 1998 (UK) c 42. Where a court finds that a public authority has acted unlawfully, it may grant such relief or remedy, or make such order, within its power, as it considers just and appropriate under s 8(1). The remedies that may be available in any forum include damages, injunctions, declarations, and/or relief by prerogative writ after judicial review (eg certiorari, mandamus or prohibition). Courts or tribunals with limited jurisdiction will be most affected by s 8(1). They will be powerless to award a remedy considered ‘just and appropriate’ and ‘necessary to afford just satisfaction’ if it is beyond their statutory jurisdiction: s 8.
[166] Human Rights Act 1998 (UK) c 42, s 10(2). In the case of subordinate legislation, if the Minister considers that it is necessary to amend the primary legislation under which the subordinate legislation was made in order to enable any incompatibility to be removed, and that there are compelling reasons for proceeding, the Minister may by order make such amendments to the primary legislation as are considered necessary under s 10(3).
[167] Section 10(1).
[168] In the situation where an appeal lies, a remedial order cannot be made until all persons who may appeal have stated in writing that they do not intend to do so, the time for bringing an appeal has expired and no appeal has been brought within that time, or an appeal brought within that time has been determined or abandoned, as per s 10(1)(a).
[169] This relates only to proceedings against the United Kingdom after the date of entry into force of s 10 of the Human Rights Act 1998 (UK) c 42 (2 October 2000). Moreover, it does not apply to European Court of Human Rights decisions pertaining to other contracting states. If the Court finds that legislation of another contracting state, which is in similar terms to British legislation, violates ECHR rights, the Parliament can only amend this legislation by normal means.
[170] Human Rights Act 1998 (UK) c 42, s 20(1).
[171] Further detail about remedial orders is contained in s 10 and sch 2 of the Human Rights Act 1998 (UK) c 42.
[172] Human Rights Act 1998 (UK) c 42, sch 2, ss 2(b) and 4(1).
[173] Human Rights Act 1998 (UK) c 42, sch 2, s 4(4).
[174] There are democratic difficulties with remedial measures, particularly the fast-track remedial measures. For instance, the fast-track measures sanction the use of ‘Henry VIII clauses’ (that is, the change of primary legislation by subordinate legislation). A further concern is the lack of consultation with the elected representatives in developing the response to a declaration of incompatibility. The remedial response process should be more refined to avoid these difficulties, but the length of this article prevents further discussion of this issue.
[175] Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 52.
[176] Ibid. Section 24 also grants the judiciary remedial powers. Section 24(1) empowers the courts to give anyone whose rights or freedoms have been denied or infringed a remedy that is just and appropriate in the circumstances. Section 24(2) empowers a court to exclude evidence obtained in violation of the rights and freedoms in the Charter if to admit it would bring the administration of justice into disrepute. These remedies generally will not be invoked if s 52 has been engaged.
[178] Hogg and Bushell, ‘The Charter Dialogue’, above n 137, 96.
[179] Ibid.
[180] See above n 151 and accompanying text.
[181] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 33(2).
[182] Section 33(3)–(5).
[183] These are the democratic rights (ss 3–5), mobility rights (s 6) and language rights (ss 16–23).
[184] A-G (Quebec) v La Chaussure Brown’s Inc [1988] 2 SCR 712.
[185] Ines Molinaro, ‘The Charter and Quebec: Exploring the Limits of Constitutional Authority’ in Gavin Anderson (ed), Rights and Democracy: Essays in UK–Canadian Constitutionalism (1999) 139, 160.
[186] Peter Russell, ‘Canadian Constraints on Judicalisation from Without’ in C Neal Tate and Torbjorn Vallinder (eds), The Global Expansion of Judicial Power (1995) 137, 138.
[187] Tsvi Kahana, ‘The Notwithstanding Mechanism and Public Discussion: Lessons from the Ignored Practice of Section 33 of the Charter’ (2002) 44 Canadian Public Administration 255.
[188] This occurred in the language rights case of A-G (Quebec) v La Chaussure Brown’s Inc [1988] 2 SCR 712.
[189] Trakman, Cole-Hamilton and Gatien, above n 130, 95. Two examples where this has occurred are with the Lord’s Day Act, RSC 1970, c L-13 and the Canada Elections Act, SC 2000, c 9.
[190] Manfredi, above n 136, 22.
[191] Ibid.
[192] Ibid 195.
[193] Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996) 332, 342; also see Ronald Dworkin, ‘Mr Liberty’ (book review of Learned Hand: The Man and the Judge by Gerald Gunther) (1994) 41(13) The New York Review 17, 20.