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Legislative Vs. Judicial Checks and Balances: Rights Policy in Canada and Australia

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Legislative Vs. Judicial Checks and Balances: Rights Policy in Canada and Australia UNIVERSITY OF CALGARY Legislative vs. Judicial Checks and Balances: Rights Policy in Canada and Australia by Andrew Craig Banfield A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY DEPARTMENT OF POLITICAL SCIENCE CALGARY, ALBERTA SEPTEMBER 2010 © ANDREW C. BANFIELD, 2010 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A 0N4 Ottawa ON K1A0N4 Canada Canada Your We Votre reference ISBN: 978-0-494-69466-4 Our file Notre reference ISBN: 978-0-494-69466-4 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduce, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, preter, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non­ support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats. The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extra its substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission. In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these. While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis. 1+1 Canada Abstract This study contributes comparative evidence to a longstanding debate about what kinds of institutional checks and balances best promote rights enhancing policy moderation. One side in the debate sees moderation flowing from a "dialogue" between dispassionate courts exercising "strong-form" review and impassioned (hence extremist) legislatures. The other side, believing that courtroom "rights talk" fans the flames of extremist polarization, stresses the moderating influence of other (generally more "political") checks and balances. In this second view, courts can indeed contribute to a moderating inter-branch "dialogue," but are more apt to have this beneficial influence when they exercise some kind of "weak-form" review. Canada (with its 1982 Charter of Rights and Freedoms) and Australia (with its ongoing rejection of a constitutional bill of rights) are two otherwise similar regimes that have positioned themselves on opposite sides - indeed at opposite ends - of this debate. As such, they present obvious and attractive candidates for comparative analysis. Our question thus concerns the fate of policy moderation in these two countries. That question is addressed through case studies focusing on three so-called "two-sided" moral issues: euthanasia, gay rights, and prisoner voting. While middle ground positions typically exist on such issues, they are often overwhelmed by the polar extremes. Moreover, these types of issues are precisely the kinds of issues most likely to end up in court, especially under rights documents of various kinds. They thus provide the best test of competing claims about the moderating or polarizing influence of judicial power or legislative power. The three case studies provide some, but not unqualified, support for the "polarization" hypothesis. At the same time, they display the particular advantages - greater detail, texture, and nuance - of the case-study approach. This study brings theoretical refinement by situating each case study in a broad comparative review of how the same policy issue has fared in the liberal democratic world more generally. The resulting evidence underlines the relevance of the distinction between strong-form and weak-form judicial review and need to more systematically exploit that distinction in assessing the moderating or polarizing tendencies of judicialized "rights talk." ii Preface Parts of Chapters 2, 4, and 5 are previously published by Andrew C. Banfield and Rainer Knopff as "Legislative vs. Judicial Checks and Balances: Comparing Rights Policies Across Regimes" in The Australian Journal of Political Science 44:1 (March 2009): 13- 27. This material has been re-worked for incorporation in the present study. For the earlier article, both authors contributed to the conceptual framework. Andrew Banfield was the lead and corresponding author. Rainer Knopff added to some sections and helped revise others. iii Acknowledgements For those of you that know me, you know I'm not one for speeches. But I would be remiss if I did not thank a few people. I will be forever indebted to my supervisor, Rainer Knopff. Over the last half decade, I have come to know him as supervisor, advisor, occasional fishing companion, mentor, and friend. With endless patience, which I'm sure I tested, he taught me the value of logographic necessity, and what true scholarship looks like. I can only hope to someday repay all he's done for me. Lisa Young has had to endure more than most and deserves special thanks for serving as my all-purpose career counsellor, adviser, and on more than one occasion, a voice of reason. Anthony Sayers' unbridled enthusiasm for this project, and others we've worked on together, was a constant reminder of why I chose this profession. Thanks to you both. I was surrounded by a number of friends who made this project better. Gemma Collins, David Coletto, Jared Wesley, Mike Zekulin made those long days of grad school bearable, and were a constant source of insight. Greg Flynn, Dave Snow, and Mark Harding are invaluable friends who made my thinking about law and courts better. A number of talented political scientists helped clarify my cloudy thinking: Janet Ajzenstat, Rhonda Evans Case, Tom Flanagan, and Ted Morton. The Australian components of this project benefited innumerably from conversations with: Brian Galligan, Emma Larking, and John Uhr. The University of Calgary has become, and will always be, my academic home. As such, a special thanks is due to the entire faculty and staff; especially Ella Wensel and Judi Powell, who worked tirelessly on my behalf without nearly enough credit. I would also like to acknowledge the generous financial support from the University, the Institute for Advanced Policy Research, and the Social Science and Humanities Research Council of Canada. Finally, I would like to thank my entire family for enduring what has been a long academic journey. My Mom, Dad, and brother Adam, were always supportive - without fail. Last, but certainly not least, I thank my wife, Julie. Your constant support and encouragement kept me going when I was ready to stop. You endured the longest, and grumpiest(!) hours of this project. For putting up with me, you deserve a medal. iv Dedication For Dad and Mom Table of Contents Abstract ii Preface iii Acknowledgements iv Dedication v Table of Contents vi List of Figures and Tables viii CHAPTER 1: INTRODUCTION 1 CHAPTER 2: INSTITUTIONAL ARRANGEMENTS TO PROTECT RIGHTS 9 The United States: Federalists vs. Anti-Federalists 11 Canada and Australia 16 Canada vs. Australia 25 The Role of the Courts in the Absence of Constitutional Bills of Rights 31 Conclusion 49 CHAPTER 3: METHODOLOGY 51 Issue Selection 52 Operationalizing Moderation 66 CHAPTER 4: PRISONER VOTING 72 Prisoner Voting as Moral Politics 73 Prisoner Voting: The Policy Continuum 76 The Moderate Middle in Comparative Context 79 Comparative Policies 79 Judicial Opinion 87 Public Opinion 92 The Shifting Middle: Prisoner Voting Rights in Australia 95 Prisoner Voting in Canada 107 Conclusion 114 CHAPTER 5: SAME-SEX MARRIAGE 118 Same-Sex Marriage as Moral Politics 118 Same-Sex Marriage: The Policy Continuum 125 The Moderate Middle in Comparative Context 126 Comparative Policies 127 Judicial Opinion 134 Public Opinion 147 Same-Sex Marriage in Australia 156 Same-Sex Marriage in Canada 170 Conclusion 182 vi CHAPTER 6: EUTHANASIA 185 Euthanasia as Moral Politics 186 Euthanasia: the Policy Continuum 188 Moderate Middle in Comparative Context 193 Comparative Public Policy 195 Judicial Opinion 207 Public Opinion 217 Australia 222 Canada 234 Conclusion 244 CHAPTER 7: CONCLUSION - MODERATION RECONSIDERED 247 REFERENCES 257 vii List of Figures and Tables Figure 1: Mainstream and Radical Politics 61 Table 1: Prisoner Voting Policy Alternatives 77 Table 2: Same-Sex Marriage Policy Alternatives 125 Table 3: Euthanasia by Type/Action 189 viii CHAPTER 1: INTRODUCTION The question is simple enough: what happens when our normal, middle-of-the- road, split-the-difference, daily political interactions run headlong into an issue on which many people strongly resist "splitting the difference"? Issues such as abortion and capital punishment are longstanding examples of this type of issue; more recently, euthanasia,
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