PROTECTING RIGHTS WITHOUT A BILL OF RIGHTS This page intentionally left blank Protecting Rights Without a Bill of Rights Institutional Performance and Reform in Australia Edited by TOM CAMPBELL Professorial Fellow, Centre for Applied Philosophy and Public Ethics, Charles Sturt University, Australia JEFFREY GOLDSWORTHY Professor of Law, Monash University, Australia ADRIENNE STONE Fellow, Law Program, Research School of Social Sciences, Australian National University, Australia © Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone 2006 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone have asserted their right under the Copyright, Designs and Patents Act, 1988, to be identifi ed as the editors of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Gower House Suite 420 Croft Road 101 Cherry Street Aldershot Burlington, VT 05401-4405 Hampshire GU11 3HR USA England Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Protecting rights without a bill of rights : institutional performance and reform in Australia. - (Law, justice and power series) 1. Civil rights - Australia I. Campbell, Tom, 1938- II. Goldsworthy, Jeffrey Denys III. Stone, Adrienne (Adrienne Sarah Ackary) 342.9'4085 Library of Congress Cataloging-in-Publication Data Protecting rights without a Bill of Rights : institutional performance and reform in Australia / edited by Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone. p. cm. -- (Law, justice and power) Includes index. ISBN 0-7546-2558-3 1. Civil rights--Australia. 2. Human rights--Australia. I. Campbell, Tom, 1938- II. Goldsworthy, Jeffrey Denys. III. Stone, Adrienne (Adrienne Sarah Ackary) IV. Series. KU2095.P76 2006 342.7308'5--dc22 2006000087 ISBN 0 7546 2558 3 Printed and bound in Great Britain by MPG Books Ltd, Bodmin, Cornwall. Contents List of Contributors vii Introduction Jeffrey Goldsworthy 1 PART I INSTITUTIONAL PERFORMANCE 1 Australian Exceptionalism: Rights Protection Without a Bill of Rights 17 Brian Galligan and F.L. (Ted) Morton 2 The Performance of Australian Legislatures in Protecting Rights 41 John Uhr 3 Improving Legislative Scrutiny of Proposed Laws to Enhance Basic Rights, Parliamentary Democracy, and the Quality of Law-Making 61 Bryan Horrigan 4 The Performance of Administrative Law in Protecting Rights 101 Robin Creyke 5 Australia’s Constitutional Rights and the Problem of Interpretive Disagreement 137 Adrienne Stone PART II PARTICULAR HUMAN RIGHTS ISSUES 6 Rights and Citizenship in Law and Public Discourse 161 Helen Irving 7 Chained to the Past: the Psychological Terra Nullius of Australia’s Public Institutions 175 Megan Davis vi Protecting Rights Without a Bill of Rights 8 Constitutional Property Rights in Australia: Reconciling Individual Rights and the Common Good 197 Simon Evans PART III INTERNATIONAL PERSPECTIVES 9 American Judicial Review in Perspective 225 Robert Nagel 10 The Unfulfi lled Promise of Dialogic Constitutionalism: Judicial–Legislative Relationships Under the Canadian Charter of Rights and Freedoms 239 Christopher Manfredi PART IV STRATEGIES FOR INSTITUTIONAL REFORM 11 A Modest (but Robust) Defence of Statutory Bills of Rights 263 Jeremy Webber 12 Australia’s First Bill of Rights: the Australian Capital Territory’s Human Rights Act 289 Hilary Charlesworth 13 An Australian Rights Council 305 George Winterton 14 Human Rights Strategies: An Australian Alternative 319 Tom Campbell Index 343 List of Contributors Tom Campbell is a Professorial Fellow in the Centre for Applied Philosophy and Public Ethics, Charles Sturt University, and a former Dean of the Faculty of Law, Australian National University. He is the author of The Left and Rights (Routledge, 1983), Justice (2nd edn, Macmillan, 2001) and The Legal Theory of Ethical Positivism (Dartmouth, 1996). He is also co-editor of numerous books, most recently Protecting Human Rights, Instruments and Institutions (OUP, 2003), with Adrienne Stone and Jeff Goldsworthy, and Sceptical Essays on Human Rights (OUP, 2001), with Keith Ewing and Adam Tomkins. Hilary Charlesworth is an ARC Federation Fellow in the Regulatory Institutions Network in the Research School of Social Sciences at the Australian National University, where she is also Professor of International Law in the Faculty of Law. She was chair of the ACT Bill of Rights Consultative Committee in 2002–3. Her scholarly interests include international law, human rights law and feminist legal theory. Among her many publications are Writing in Rights: Australia and the Protection of Human Rights (UNSW Press, 2002), and International Law and World Order: a Problem-oriented Coursebook (3rd edn, West Pub, 1997), with Burns Weston and Richard Falk. Robin Creyke is Alumni Professor of Administrative Law in the Faculty of Law, Australian National University. She specializes in administrative law, constitutional law and administrative tribunals. She has co-edited many books of essays on Australian administrative law, most recently The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (Federation Press, 2002), with Patrick Keyzer. She is also the author of numerous book chapters and journal articles in that fi eld. Megan Davis is a member of the Jumbunna Indigenous House of Learning in the Faculty of Law, University of Technology Sydney, and Director of the Bill of Rights Project in the Gilbert and Tobin Centre of Public Law, University of New South Wales. Her research interests include aboriginal women’s issues, customary Aboriginal law, the rights of indigenous peoples, especially to intellectual property, and the right to democratic governance in international law. She is the author of book chapters and journal articles in these areas. Simon Evans is Director of the Centre for Comparative Constitutional Studies in the Faculty of Law, Melbourne University. He researches and teaches in constitutional law and theory. He is particularly interested in non-judicial mechanisms for protecting human rights, accountability of the executive government and constitutional viii Protecting Rights Without a Bill of Rights protection of property rights. He is the author of numerous articles and book chapters on these and other topics. Brian Galligan is a Professor of Political Science at the University of Melbourne. He researches and teaches mainly in Australian constitutional politics and political economy. His most recent books are Australian Citizenship (MUP, 2004) with Winsome Roberts, Australians and Globalisation (CUP, 2001), with Winsome Roberts and Gabriella Trifi letti, Citizens Without Rights: Aborigines and Australian Citizenship (CUP, 1997), with John Chesterman, and A Federal Republic (CUP, 1995). He is also the author of The Politics of the High Court (University of Queensland Press, 1987), and is currently editing the Oxford Companion to Australian Politics. Jeffrey Goldsworthy is Professor of Law at Monash University. He specializes in constitutional law, history and theory, and legal philosophy. He is author of The Sovereignty of Parliament, History and Philosophy (OUP, 1999), and co-editor of Protecting Human Rights, Instruments and Institutions (OUP, 2003), with Tom Campbell and Adrienne Stone, and of Legal Interpretation in Democratic States (Ashgate, 2002) and Judicial Power, Democracy and Legal Positivism (Ashgate, 2000), both with Tom Campbell. Bryan Horrigan is a Professor in the Division of Law at Macquarie University. His research and teaching cover a broad range of topics in the areas of governmental and business law. His human rights work covers native title, corporations and human rights, and parliamentary scrutiny of legislation for human rights implications. He is the author of Adventures in Law and Justice: Exploring Big Legal Questions in Everyday Life (UNSW Press, 2003), and editor of several books including Government Law and Policy: Commercial Aspects (Federation Press, 1998). Helen Irving is an Associate Professor of Law at the University of Sydney. Her interests include constitutional history, jurisprudence and law, federalism, and intergovernmental relations. She is the author of Five Things to Know about the Australian Constitution (Cambridge University Press, 2004), To Constitute a Nation: A Cultural History of Australia’s Constitution (rev. ed., CUP, 1999), and editor of The Centenary Companion to Australian Federation (CUP, 1999) and several other collections. Christopher Manfredi is a Professor in the Department of Political Science, McGill University, Canada. He specializes in comparative constitutionalism and judicial politics, American public law and Canadian politics. He is the author of Feminist Activism in the Supreme Court of Canada (UBC Press, Vancouver, 2004), Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (2nd edn, OUP, Toronto, 2001), The Supreme Court and Juvenile Justice (Kansas UP, Lawrence, Kansas, 1997), and numerous book chapters and journal articles. List of Contributors ix F.L. (Ted) Morton was a Professor of Political Science at the University of Calgary, until he became a Member of the Albertan Legislative Assembly in 2004. He specializes in constitutional politics and rights protection, and has published extensively on Canadian politics since the adoption of the Charter of Rights