University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2009 A Minimalist Charter of Rights for Australia: The U.K. or Canada as a Model? Rosalind Dixon Follow this and additional works at: https://chicagounbound.uchicago.edu/ public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. Recommended Citation Rosalind Dixon, "A Minimalist Charter of Rights for Australia: The .KU . or Canada as a Model?" (University of Chicago Public Law & Legal Theory Working Paper No. 285, 2009). This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. CHICAGO PUBLIC LAW AND LEGAL THEORY WORKING PAPER NO. 285 A MINIMALIST CHARTER OF RIGHTS FOR AUSTRALIA: THE U.K. OR CANADA AS A MODEL? Rosalind Dixon THE LAW SCHOOL THE UNIVERSITY OF CHICAGO November 2009 This paper can be downloaded without charge at the Public Law and Legal Theory Working Paper Series: http://www.law.uchicago.edu/academics/publiclaw/index.html and The Social Science Research Network Electronic Paper Collection. A MINIMALIST CHARTER OF RIGHTS FOR AUSTRALIA: THE U.K. OR CANADA AS A MODEL? Rosalind Dixon* Minimalist: Involving minimum change or intervention - Oxford English Dictionary Most commentators agree that, if Australia is to adopt a charter of rights, such a charter should so far as possible involve a 'minimalist' form of constitutional change.1 It should both be enacted by ordinary statute and seek to preserve broad scope for the Commonwealth Parliament, in appropriate cases, to override the interpretation of non-constitutional rights by the High Court. When it comes to questions of form and enforceability, the thinking is that it should be modelled on either the Human Rights Act 1998 (UK) c 42 ('UK HRA'), and the largely equivalent state statutory charters in the ACT and Victoria,2 or on the Canadian Bill of Rights, SC 1960, c 44 ('CBOR'). Not only would a statutory charter of this kind be easier to adopt than a more entrenched model of charter, such as a charter modelled on the US Bill of Rights, the Canadian Charter of Rights and Freedoms 1982 (the second and later of Canada's two operative human rights charters) ('Canadian Charter'), or Constitution of the Republic of South Africa 1996. By formally preserving broad scope for Parliament to * Assistant Professor of Law, University of Chicago Law School. The author wishes to thank Peter Cane, Harry Dixon, Marion Dixon, Carolyn Evans, Richard Holden, Andrew Lynch, Ed Santow, Cheryl Saunders and Adrienne Stone for helpful comments and suggestions on earlier drafts of this article, and the issues raised by it. Thanks are also due to Jennifer Dougherty and Emily Tancer for excellent research assistance. 1 For the idea of minimalism in constitutional law, particularly as applied to the process of judicial review, see Cass R Sunstein, One Case At A Time: Judicial Minimalism on the Supreme Court (1999). 2 See Human Rights Act 2004 (ACT) ('ACT HRA'); Victorian Charter of Rights and Responsibilities 2006 (Vic) ('Victorian Charter'). For relevant differences, see, eg, Carolyn Evans, 'British Influences on Australian Human Rights Acts' (Paper presented at the Faculty of Law, Oxford University, 24 April 2007); Simon Evans, 'The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria,' Paper presented at the Australian Bills of Rights: The ACT and Beyond Conference, Canberra, 21 June 2006. In many ways, the Bill of Rights 1990 (NZ) is also another model in this same broad category, but as a potential precedent raises certain additional complications. One complication is that it contains no express power to make a declaration of incompatibility or inconsistency, and therefore to the extent such a power is judged desirable even on minimalist grounds, raises unnecessary complications. Another difficulty is that it has been interpreted by the New Zealand Court of Appeal. To imply certain fairly maximalist remedies, including a right to damages for the breach of the Act: see, eg, Simpson v A-G [1994] 3 NZLR 667 ('Baigent's Case'). For some, this raises concerns about the stability of weak-form judicial review: see, eg, James Allan, 'Take Heed Australia — A Statutory Bill of Rights and Its Inflationary Effect'(2001) 6 Deakin Law Review 322, 333 (discussing the emotive power of 'rights talk' referencing a bill of rights); Grant Huscroft, 'Protecting Rights and Parliamentary Sovereignty: New Zealand's Experience with a Charter Inspired, Statutory Bill of Rights' (2002) 21 Windsor Yearbook of Access to Justice 111, 129 (arguing that increased rights-consciousness produces a strong gravitational pull away from weak-form judicial review); Mark Tushnet, 'Judicial Activism or Restraint in a Section 33 World' (2003) 53 University of Toronto Law Journal 89, 89–90. However, it may also reflect more specific problems associated with the design of the NZBOR, and the approach of some members of the New Zealand Court of Appeal in the early years of the operation of the NZBOR: see, eg, Andrew S Butler, 'Declaration of Incompatibility or Interpretation Consistent with Human Rights in New Zealand' (2001) Public Law 28 (on design); Anna Adams, 'Competing Conceptions of the Constitution: The New Zealand Bill of Rights Act 1990 and the Cooke Court of Appeal' (1996) New Zealand Law Review 368 (summarizing the approach of Lord Cooke and other members of the Cooke court to the NZBOR). override a decision of the High Court in respect of rights, it would also, proponents argue, be more respectful of existing democratic commitments than a US-style rights charter.3 As between the two different statutory charter models provided by the UK HRA and CBOR, when it comes to the question of judicial enforcement, most charter commentators further suggest that the British model is the more minimalist of the two.4 By purporting to limit the power of courts to declare legislation invalid for inconsistency with a rights charter, or adopting a system of 'weak remedies,'5 the British model not only gives Parliament formal power to amend or expressly to suspend rights as they have been interpreted by the Court, but also the formal power to decline to respond to a declaration of incompatibility by the Court. It is therefore even closer, so the argument goes, to Australia's current system of human rights protection.6 Partly for this reason, it is also now the model endorsed by National Human Rights Consultation Committee in its Final Consultation Report.7 While sympathetic to the idea of charter minimalism, this paper challenges this minimalist orthodoxy favouring a British-style charter. At the level of substance, rather than form, charter minimalism requires not only that Parliament retain the ultimate power to override decisions of the High Court in respect of rights, but also that Parliament be in practice willing to contribute to defining the scope and priority to be given to particular rights. If the Court insists that, in order to achieve this, Parliament must rely exclusively on a formal power of override, then the process is likely to fail. For members of Parliament, the political costs of engaging in dialogue will simply be too high in most cases. A truly minimalist charter, if indeed it is achievable, therefore requires that under such a charter the Court be willing to empower members of Parliament to engage in dialogue via more ordinary legislative means.8 For the Court, this means avoiding an unduly strained approach to the interpretation of statutory language and intention, and, in some 'second look' cases, even showing additional deference to the constitutional judgments of Parliament.9 A British-style charter directly undermines the likelihood that the Court will adopt such an approach to the interpretation of statutes, at least in cases that purport to determine individual rights and liabilities once and for all. In such civil and criminal, or non-pure public law, cases, judges under a UK-style charter 3 It should, of course, be noted that the degree to which the US leaves scope for democratic dialogue between the Supreme Court and the elected branches, either via United States Constitution art V, § 5 of the Fourteenth Amendment or otherwise, is itself a contested question. 4 When it comes to the substantive rights the two charters protect, the CBOR is generally agreed to be much narrower and to that extent more minimalist — but potentially too much so. See Walter S Tarnopolsky, 'The Historical and Constitutional Context of the Proposed Canadian Charter of Rights and Freedoms' (1981) 44(3) Law and Contemporary Problems 169. See also Part III below. 5 On the distinction between strong — versus weak-forms of review, see Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008). 6 See, eg, Hilary Charlesworth, 'Who Wins under a Bill of Rights?' (2006) 25 University of Queensland Law Journal 39, 50 (arguing that, whatever the merits of democratic concerns about judicial review in the name of human rights, such concerns are directly answered by such a power); Geoffery Robertson, The Statute of Liberty: How Australians Can Take Back their Rights (2009) 47-48 (arguing for such a model as representing a true 'half-way' house model); George Williams, 'The Victorian Charter of Human Rights and Responsibilities: Origins and Scope' (2006) 30 Melbourne University Law Review 880.