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Constitutional reengineering:
Dialogue’s migration from
Canada to Australia
Scott Stephenson*
Foreign sources affect the development of constitutional systems in a variety of ways. In this
article, I examine the intentional modification, or reengineering, of foreign constitutional
ideas. The study of constitutional reengineering offers insights into how and why actors use
foreign constitutional ideas and informs analysis of convergence and divergence among constitutional systems.
To highlight the process and implications of constitutional reengineering, I analyze dialogue’s migration from Canada to Australia. Canadians develop the idea of dialogue to differentiate its Charter of Rights and Freedoms from the United States Bill of Rights, suggesting
that the Charter facilitates unique forms of institutional interaction, or dialogue, between
courts and legislatures on the meaning of rights. Australians appropriate and reengineer the
idea, expanding dialogue to include the executive and public and reorienting it to differentiate
Australia’s statutory form of rights protection from the status quo ante, namely a system
of legislative supremacy.
This study of reengineering complicates existing comparative analyses of rights protection in the Commonwealth, which suggest these rights instruments establish a middle
ground between the paradigms of judicial and legislative supremacy. First, debates about
dialogue in Australia and Canada underscore the difficulty in what it means to establish
a middle ground in the context of rights protection. Second, Australia’s reengineered idea
of dialogue emphasizes the importance of examining not only which institution gets the
final say, the typical means of conceptualizing the middle ground, but also the dynamics
of the law making process.
* Tutor-in-Law & J.S.D. Candidate, Yale University. I thank Bruce Ackerman, James Fowkes, Janet Hiebert,
Lisa Kerr, Kim Pham and Tom Smyth for their helpful discussions and insightful comments. I presented
an earlier version of this paper at the Law & Society Association International Conference, Hawaii,
June 5, 2012. Email: [email protected].
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1. Introduction
The migration of constitutional ideas across jurisdictions raises a number of analytically interesting and important questions.1 One that generates extensive disagreement, especially in the United States, is whether courts should employ foreign sources
in the task of constitutional interpretation.2 By contrast, looking beyond one’s borders
is a well-established and uncontroversial practice when debating, designing and drafting constitutional documents.3 During these stages, which are the focus of this paper,
the principal inquiries are how and why actors4 engage with foreign sources and what
effect comparative engagement has on patterns of convergence and divergence among
constitutional systems.5
Actors adopt both positive and negative postures toward foreign sources; the experiences of other countries provide models to follow but also anti-models to avoid. The
global catalogue of constitutional systems supplies a variety of principles, provisions,
and structures, some of which actors seek to incorporate, others they seek to eschew.
Negative engagements with foreign sources are often singled out for analysis because
they deepen our understanding of constitutional development and identity. Sujit
Choudhry’s study of the “Lochner era” as an anti-model during the drafting of the
Canadian Charter of Rights and Freedoms 1982 (the “Canadian Charter”), for example, challenges universalist and particularlist accounts of constitutional construction
by suggesting it is neither wholly the product of hegemonic global forces nor wholly a
response to singular domestic conditions.6
In this article, I discuss constitutional reengineering as another form of comparative
engagement capable of yielding valuable insights into the dynamics of migration and questions of constitutional similarity and difference. It is well understood that constitutional
In this paper, I do not take a position on the most appropriate metaphor to describe how foreign sources
affect domestic constitutional systems. On this debate, see Vlad Perju, Constitutional Transplants,
Borrowing, and Migrations, in Oxford Handbook of Comparative Constitutional Law 1304 (Michel Rosenfeld
& András Sajó eds., 2012). In using the term “constitutional ideas,” I adopt Gunter Frankenberg’s definition: “Ideas can be described as knots of significations that ‘framers,’ courts, and commentators have
spun. These knots come under the guise of constitutional archetypes, patterns, structures, basic outlines, plans of action, or conceptions”: Gunter Frankenberg, Comparing Constitutions: Ideas, Ideals, and
Ideology—Toward a Layered Narrative, 4 Int’l J. Const. L. . 439, 440 (2006).
2
See, e.g., Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional
Interpretation, 74 Ind. L.J. 819 (1999); Mark Tushnet, The Possibilities of Comparative Constitutional Law,
108 Yale L.J. 1225 (1999); Ruti Teitel, Comparative Constitutional Law in a Global Age, 117 Harv. L. Rev.
2570 (2004); Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv.
L. Rev. 109 (2005).
3
The U.S. Const., for example, was “written against the backdrop of 18th-century English law and legal
thought”: Roper v. Simmons, 543 U.S. 551, 626 (2005) (Scalia J.).
4
I use the term “actors” broadly, referring to persons and institutions engaged in the field of constitutional
law, such as academics, advocates, committees, drafters, interest groups, lawyers and politicians.
5
On the centrality of these inquiries to the study of comparative constitutional law, see Sujit Choudhry,
Migration as a New Metaphor in Comparative Constitutional Law, in The Migration of Constitutional Ideas 1,
21 (Sujit Choudhry ed., 2007); Gunter Frankenberg, Constitutional Transfer: The IKEA Theory Revisited, 8
Int’l J. Const. L. 563, 579 (2010).
6
Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2 Int’l J. Const. L. 1, 48–52 (2004).
See also Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying CrossConstitutional Influence Through Negative Models, 1 Int’l J. Const. L. 296 (2003).
1
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I•CON 11 (2013), 870–897
ideas are context sensitive and therefore susceptible to unintentional alteration or transformation when transplanted from one jurisdiction to another.7 Reengineering refers to
the deliberate, as opposed to the accidental or inevitable, modification of foreign ideas
upon their incorporation into a domestic system.8 It involves the addition, amendment, or
replacement of (at least) one cardinal element of a constitutional idea, such as its principal
function or objective. Neither a wholly positive nor wholly negative form of comparative
engagement, reengineering entails adoption of some elements of an idea and rejection of
others. Section 2 of the article discusses the notion of reengineering in detail.
To illustrate the process and implications of constitutional reengineering, I evaluate Australia’s approach to rights reform in the late 1990s and early 2000s, a period
during which domestic actors reengineer the Canadian idea of dialogue. In both
countries, the concept broadly refers to interactions between public institutions on
rights issues. Dialogue, in its Canadian form, addresses the subject of judicial finality—whether courts have the final word on rights issues. Debates about dialogue are
debates about whether the Canadian Charter is distinguishable from the paradigm of
judicial supremacy as exemplified by the United States Bill of Rights (US BoR). Section
3 of the paper analyzes the Canadian idea of dialogue.
In Australia, where debate was under way as to whether it should adopt a rights
instrument and, if so, what form should it take, actors appropriate the idea and
language of dialogue, becoming both the object of reform as well as the means of
achieving that object. During its journey across the Pacific Ocean, the idea of dialogue is reengineered in two respects. First, it expands beyond courts and legislatures
to encompass institutional interactions between all three arms of government and
between government and community. From this shift emerges a different attitude to
the primary source of rights violations. Second, dialogue’s rationale in constitutional
theory reorients so as to differentiate Australia’s form of rights protection from the
paradigm of legislative, not judicial, supremacy. I discuss Australian actors’ efforts to
reengineer the idea of dialogue in Section 4.
I argue in Section 5 that this process of constitutional reengineering supplies a
point of caution in relation to existing comparative accounts of rights developments
in Australia, Canada, New Zealand, and the United Kingdom. The rights instruments
in these four countries, commonly referred to in terms of “the new Commonwealth
model of constitutionalism,”9 “parliamentary bills of rights,”10 or “weak-form
For a discussion of the importance of context to the migration of ideas in the field of private law, see Alan
Watson, Legal Transplants (1974); Pierre Legrand, The Impossibility of “Legal Transplants,” 4 Maastricht
J. Eur. & Comp. L. 111 (1997); Alan Watson, Legal Transplants and European Private Law, 4.4 Elec. J. Comp.
L. (Dec. 2000), available at http://www.ejcl.org/44/art44-2.html.
8
Other scholars occasionally refer to the phenomenon but rarely single it out for separate or detailed treatment: see, e.g., Wiktor Osiatynski, Paradoxes of Constitutional Borrowing, 1 Int’l J. Const. L. 244, 251–252
(2003); Frankenberg, supra note 5, at 570.
9
Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001);
Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 Int’l J. Const. L. 167
(2010); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism (2013).
10
Janet L. Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When
Interpreting Rights?, 82 Tex. L. Rev. 1963 (2004); Janet L. Hiebert, Parliamentary Bills of Rights: An
Alternative Model?, 69 Mod. L. Rev. 7 (2006).
7
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873
judicial review,”11 are said to occupy a middle ground or intermediate position
between the traditional paradigms of judicial supremacy and legislative supremacy because they empower courts to review legislation for compatibility with
rights while permitting legislatures to disregard or override judicial determinations on rights without resort to constitutional amendment or indirect means.
Comparative analysis of the idea of dialogue highlights two matters. First, it
demonstrates the difficulty of situating the Australian and Canadian instruments
between the two traditional paradigms because their shared, distinguishing feature (dialogue) is, in fact, a point of divergence, not convergence, between them.
Second, existing accounts tend to view developments through the prism of judicial review and legislative override.12 Yet the idea of dialogue, as reengineered
in Australia, draws attention to the importance of processes (the procedures by
which law making power is exercised) as much as outputs (which institution gets
the final word).
2. Constitutional reengineering and comparative analysis
2.1. Definition
Foreign ideas influence the process of constitutional construction in a variety of ways.
It is helpful to begin by demarcating what I do not consider constitutional reengineering. Actors may seek to emulate a constitutional idea either by copying it verbatim
or by copying all of its essential features. The latter refers to instances where drafters
copy a provision but make stylistic or peripheral modifications such as rewording or
reformatting.
Even when actors intend to emulate a foreign idea, this does not necessarily indicate that emulation will in fact result. Actors may misunderstand an idea’s attachment to or dependence on other elements in the foreign constitutional system. Or
domestic lawyers and judges might misconstrue the effect of reformulation, adopting a substantially different meaning when reformulation of a foreign provision
was intended merely to clarify. When actors consult foreign sources during the process of constitutional construction, they are often working under a double burden.
Not only might they have incomplete or distorted knowledge about the foreign idea
and its host environment but they are also making predications about the range
of circumstances the foreign idea will encounter if adopted domestically.13 Given
the significance of context, culture, path dependency, and human idiosyncrasy, it
is arguably unavoidable that ideas will undergo some modification as they migrate
Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries,
38 Wake Forest L. Rev. 813 (2003); Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev.
2781 (2003); Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in
Comparative Constitutional Law (2008).
12
Although Stephen Gardbaum does not discuss in detail the importance of processes, he does criticize the tendency to focus exclusively on judicial review: Gardbaum, The New Commonwealth Model of
Constitutionalism, supra note 9, at 14.
13
Frankenberg, supra note 5, at 575.
11
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I•CON 11 (2013), 870–897
to new jurisdictions.14 For present purposes, the relevant point is that such modifications are epiphenomenal: actors are seeking to reproduce without significant
modification a foreign constitutional idea in their domestic system.
Reengineering, by contrast, refers to situations where actors intend to appropriate a foreign constitutional idea and supplement, change, or replace one of its cardinal features. While no bright line can be drawn between an idea’s cardinal and
non-cardinal features, I understand them to include its principal function and objective. For reasons explained below, my definition of reengineering is confined to significant modifications in order to isolate those instances of migration where actors are
substantively developing, not merely adjusting, constitutional concepts. As with all
other forms of comparative engagement, while there must be an identifiable source,
it is not necessary to identify a single antecedent—multiple jurisdictions may express
broadly the same idea—or to track the idea back to the first time it was expressed in
constitutional law.15
Fundamental to my definition of reengineering is intent. Reengineering is not the
result of actors’ limited knowledge and foresight or a function of the complex web of
factors that affect the operation of constitutional law. It is, instead, the conscious decision to use a constitutional idea from a foreign system and to modify it in an important respect to meet the goals of or constraints imposed by the domestic legal and
political environment. Modification is not the accidental or inevitable consequence of
migration but a purposive retooling of the machinery of constitutional government.
No restrictions are, however, imposed on the character or quality of modification.
Reengineering is not confined to attempts to enhance or improve constitutional ideas,
even if it were possible to identify what constitutes these qualities. Pernicious motives
may underlie decisions to reengineer.
Focusing on the fact of intent raises a number of methodological issues. Actors do
not always reveal the reasons for the positions they hold or may publicly set forth secondary or ulterior reasons to obtain competitive advantages in the course of constitutional debate and negotiation. Yet, as others scholars demonstrate, it is possible to draw
nuanced conclusions about the ways in which foreign sources enter and influence the
development of domestic systems if careful attention is paid to primary sources.16
Constitutional construction involves the participation of numerous persons and
institutions often with dissonant aspirations, assumptions, and levels of legal expertise.17 The presence of multiple contested meanings in respect of an idea is not, however, fatal to the study of constitutional reengineering. Indeed, contestation is often
a condition of its facilitation. If some actors want to incorporate a foreign idea while
Osiatynski, supra note 8, at 261–266.
As Gunter Frankenberg states, “constitutional history teaches us that points of origin are hard to pin
down”: Frankenberg, supra note 5, at 570.
16
Kim Lane Scheppele’s distinction between negative and aversive forms of comparative engagement is one
such example: Scheppele, supra note 6.
17
In the context of statutory interpretation, the difficulties with the concept of legislative intent are well
known but not insurmountable: see, e.g., Richard Ekins, The Nature of Legislative Intent (2012).
14
15
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875
others campaign for its rejection, a compromise might result whereby the idea is
incorporated in a reengineered form.
As with constitutional emulation, reengineering may not produce the result actors
desire. Indeed, if emulation frequently produces unintended results, modifying constitutional elements in novel or distinctive ways arguably increases the likelihood of
unforeseen consequences. No set of drafters is able to control completely the future
outcomes of their constitutional choices. Too much uncertainty, too many contingencies complicate the exercise of constitutional construction. The unintentional
need not, however, detract from analysis of the intentional. Reengineering is a distinct and central component of comparative engagement because it represents an
attempt by actors to direct constitutional outcomes in a particular direction even if
they (and we) must acknowledge that the ultimate direction is not entirely within
their control.
Any constitutional idea that is capable of migration is capable of reengineering. Let
me provide two simplified and stylized examples. First, the idea of a written constitution. The decision to draft a document setting out the fundamental rules and structure
of government is typically also associated with an intention to constitute a new (or reaffirm an existing) independent polity, thus acting as an integral element and reflection
of that polity’s identity and values—to “symbolize[] a new consciousness of nationhood and of national beginnings.”18 The US Constitution is the paradigmatic case of a
document with these dual purposes—its text not only functions to establish the framework principles of government but also is inextricably connected to American identity,
to the creation of “We the People of the United States . . . .” Australia and Canada
borrowed the idea of a written constitution from the US in the nineteenth century,
but reengineered it, stripping away the nation-building and independence-declaring
elements.19 This difference is unmistakeable. The American document, as both a text
and symbol, is commonly described as the scripture of the country’s “civic religion.”20
By contrast, Ivor Jennings, for example, described the Canadian Constitution—the
document enacted in 1867—as “a strictly business-like document. It contains no
metaphysics, no political philosophy, and no party politics.”21 Australia and Canada’s
Constitutions were not intended to bring about or symbolize their departure from the
British Empire—both are enactments of the British Parliament—or to pertain in any
Morton J. Horwitz, Constitutional Transplants, 10 Theoretical Inquiries in L. 535, 540 (2009).
The preambles indicate as much. In the Canadian Constitution, it states that the provinces “have
expressed their desire to be federally united into one dominion under the Crown of the United Kingdom
of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom … [and
that] such a union would conduce to the welfare of the provinces and promote the interests of the British
Empire.” The preamble to the Australian Constitution is less emphatic, but the intention is nevertheless
manifest. It declares that the states “have agreed to unite in one indissoluble Federal Commonwealth
under the Crown of the United Kingdom of Great Britain and Ireland.” Some aspects of the Australian
and Canadian Constitutions are, of course, indicative of their specific identities, for example, language in
Canada: British North America Act, 1867 (UK), § 133.
20
See, e.g., Sanford Levinson, Constitutional Faith (2011).
21
W. Ivor Jennings, Constitutional Interpretation: The Experience of Canada, 51 Harv. L. Rev. 1, 1 (1937).
18
19
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I•CON 11 (2013), 870–897
deep way to the fundamental values of these nations. They were designed to establish
and regulate a federal system of government—and little more.22
Over the course of the twentieth century, a number of authoritarian regimes
adopted written constitutions with guarantees of rights and freedoms even though
the governments in these countries routinely violated them with impunity.23 The
Soviet Constitution of 1936, for example, included an extensive catalogue of rights
and freedoms,24 yet the gap between codified constitutional law and government practice was acute: the Constitution was adopted during “the height of Stalin’s reign of
terror.”25 These “sham constitutions”26 are another instance of reengineering. Actors
take the idea of a written constitution and employ it not for the purpose of regulating
and constraining government but to maintain a veneer of compliance with the rule of
law and accepted constitutional norms.
Federalism is another constitutional idea that is capable of being reengineered as
it migrates across jurisdictions. The concept of split-level government has a long history in which it has been continually modified to address a widening array of issues.27
A federal structure may be adopted, for example, to unite a collection of colonies or
sovereign states to advance economic and security interests, to facilitate local representation and government administration in a geographically expansive state, to
protect individual liberty by preventing the accumulation of power in a single, central government, and to protect the interests and promote the peaceful coexistence
of different ethnic, racial, and religious groups by granting each some degree of selfgovernment. These purposes are not mutually exclusive—actors may seek a federal
system to realize more than one objective—but they are nonetheless distinct. Many
countries have taken another country’s federal constitutional structure, such as those
of Switzerland and the US, and reengineered it to perform the functions and objectives
required by the polity’s domestic circumstances.
2.2. Rationale
Reengineering stands at the intersection of the endogenous and exogenous crosscurrents that propel the process of constitutional construction. Actors glance outwards
Australia and Canada’s Constitutions played only a minor role in achieving legal and political independence from the UK: Peter C. Oliver, The Constitution of Independence: The Development of Constitutional
Theory in Australia, Canada, and New Zealand (2005).
23
David S. Law, Constitutions, in The Oxford Handbook of Empirical Legal Research 376, 381–82 (Peter Cane
& Herbert M. Kritzer eds., 2010).
24
Const. of the Union of Soviet Socialist Republics (1936), Arts. 118–134. See generally Horwitz, supra note
18, at 536.
25
Christopher Osakwe, Soviet Human Rights Law under the USSR Constitution of 1977: Theories, Realities and
Trends, 56 Tul. L. Rev. 249, 250 (1981).
26
David S. Law & Mila Versteeg, Sham Constitutions, 101 Cal. L. Rev. 863 (2013). Cf. Frankenberg, supra
note 1, at 453.
27
On the range of federal systems, see Ronald L. Watts, Comparing Federal Systems (3d ed., 2008). On the
range of theories of federalism, see The Ashgate Research Companion to Federalism (Ann Ward & Lee Ward
eds., 2009).
22
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to source ideas that have proven effective at generating sundry beneficial effects—
drawing from the above-mentioned examples, the legitimacy that can attach to the
adoption of a written constitution or the stability that can derive from a federal system
of government. They then turn inwards to shape these ideas to respond to domestic
aspirations and constraints. Reengineering is one product of this admixture of introspection and extrospection from which we discern insights into why a constitution
functions the way it does.28 As Gary Jacobsohn observes:29
Much of the aspirational content of a nation’s specific constitutional identity consists of goals
and principles that are shared by other nations . . . . Such norms need to be reconciled with the
particularistic commitments of local traditions and practices; the contours of constitutional
identity will to a large extent reflect how these disharmonies get resolved.
Reengineering is a means by which competing constitutional priorities are both revealed
and reconciled. Study of the phenomenon thus helps us draw an accurate and complete
picture of constitutional systems, including their priorities and distinctive features.
Each of the three queries I mentioned at the start of the paper is informed by reengineering. First, to address how constitutional ideas migrate requires a measure of detail
on the treatment of foreign sources in constitutional design. Identifying the phenomenon of reengineering not only adds to the compendium of modes of comparative
engagement but also underscores the intrinsic malleability of constitutional ideas. As
my chosen metaphor suggests, actors retool the machinery of government in an effort
to improve, manipulate, or redeploy it, indicating that the study of migration is multifaceted and thus implicates more than the dichotomies of positive/negative engagement and borrowing/non-borrowing.
Second, this ductility emphasizes the relevance of pragmatic considerations to
understanding why constitutional ideas migrate. While all constitutions are not necessarily forged in the fires of adversity, the drafting process, especially in democratic systems, is typically characterized by contestation between competing factions vying for
the realization of their respective constitutional visions.30 As both a means of engaging in and a product of this contestation, reengineering exemplifies the centrality of
politics and expediency to the migratory flow of constitutional ideas. Reengineering
allows actors to exploit the benefits attaching to a constitutional idea while maintaining, or purporting to maintain, some control over its effect on the domestic system. As
mentioned above, a reengineered constitutional idea can be the artifact of compromise, a concession brokered between incorporation and non-incorporation where an
idea is included on condition of certain modifications being made.31
In the process of reengineering we can observe the nucleus of comparative law analysis, the reconciliation of “new knowledge to settled knowledge,” which involves “a dialectical exchange between the self
and the other”: Gunter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 Harv. Int’l L.J.
411, 413–414 (1985).
29
Gary Jeffrey Jacobsohn, Constitutional Identity 112–113 (2010).
30
For a discussion of the decision costs that constitutional drafters face, many of which relate to the issue of
contestation, see Rosalind Dixon & Tom Ginsburg, Deciding Not To Decide: Deferral in Constitutional Design,
9 Int’l J. Const. L. 636, 641–643 (2011).
31
See also Jacobsohn, supra note 29, at 101–102.
28
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I•CON 11 (2013), 870–897
Third, reengineering speaks to the effects of idea migration, informing and complicating assessments of convergence and divergence among constitutional systems.32 It underscores that conceptual similarity does not necessarily translate into
corporeal similarity. Reengineering provides a layer of context when context matters
most: at moments of legal and political transformation.33 Careful comparison of an
idea in its foreign and domestic guises reintroduces a level of nuance that is liable to
be removed from accounts of migration. It helps prevents, at the most fundamental
level, registration of false positives. To avoid “the trap,” as Vlad Perju states, where
“similar-sounding concepts [do not] share an identical meaning”34 or, in the words of
Morton Horwitz, to reconcile the gap between “law in books” and “law in action.”35
Constitutional reengineering is, after all, a principal means of modifying an idea while
preserving the same label.
The study of reengineering functions as an “interpretive foil,”36 prompting greater
awareness of the existence of constitutional difference and the nature of that difference. Part of its attraction is that, in contrast to unintended modifications to constitutional ideas, reengineering is capable of identification and therefore analysis.
Examination of this phenomenon thus allows us to construct more incisive comparative models of constitutional systems.
3. The Canadian Charter and the birth of dialogue
Although the Canadian Charter was enacted in 1982, the view that the instrument
creates a novel form of interaction, or dialogue, between courts and legislatures only
began to achieve prominence after an article by Peter Hogg and Allison Bushell published in 1997.37 Their article provoked a strongly contested and seminal debate in
Canadian constitutional law for it makes more than a bare descriptive claim about the
Charter’s institutional structure.38 They and subsequently others argue that dialogue
On convergence and divergence, see Rosalind Dixon & Eric A. Posner, The Limits of Constitutional
Convergence, 11 Chi. J. Int’l L. 399 (2011); Teitel, supra note 2.
33
Teitel, supra note 2, at 2583.
34
Perju, supra note 1, at 1325.
35
Horwitz, supra note 18, 538.
36
Choudhry, supra note 2, at 857.
37
The authors, in their initial article, do, however, acknowledge earlier references to dialogue to describe
interactions between courts and legislatures in American constitutional theory: Peter W. Hogg & Allison
A. Bushell, The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such
a Bad Thing After All), 35 Osgoode Hall L.J. 75, 79 n. 12 (1997).
38
For a partial list, see Rosalind Dixon, The Supreme Court of Canada, Charter Dialogue, and Deference, 47
Osgoode Hall L.J. 235, 236 n. 2 (2009). Other scholarship includes Christopher P. Manfredi & James
B. Kelly, Six Degrees of Dialogue: A Response to Hogg and Bushell, 37 Osgoode Hall L.J. 513 (1999); Jamie
Cameron, Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v. Mills, 38 Alberta L. Rev.
1051 (2001); Christopher P. Manfredi, The Life of a Metaphor: Dialogue in the Supreme Court, 1998–2003,
23 Sup. Ct. L. Rev. (2d) 105 (2004); Andrew Petter, Taking Charter Dialogue Much Too Seriously, 45 Osgoode
Hall L.J. 147 (2007); Grant Huscroft, Rationalizing Judicial Power: The Mischief of Dialogue Theory, in James
B. Kelly & Christopher P. Manfredi eds., Contested Constitutionalism: Reflections on the Charter of Rights and
Freedoms 50 (2008); Mark Tushnet, Dialogic Judicial Review, 61 Ark. L. Rev. 205 (2008).
32
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879
ameliorates the concern of judicial finality39—what Alexander Bickel called in the
American context the problem of an unelected judiciary “thwart[ing] the will of representatives of the actual people of the here and now.”40 Dialogue is an exercise in
differentiation, positing that the Canadian Charter is distinguishable from the paradigm of judicial supremacy exemplified by the US BoR and the counter-majoritarian
difficulty that engulfs analysis of it.41
3.1. The drive to differentiate
The Canadian Charter bears a number of structural similarities to its southern counterpart, explicitly replicating the fundamental features of American rights-based judicial review—the Charter is constitutionally entrenched and directs courts to enforce
its terms by declaring legislation found to be incompatible with rights to be of no force
or effect as well as to provide appropriate and just remedies to the victims of rights
violations.42 The similarities are not coincidental.
Although the US served as both model and anti-model during the drafting process,43
Canada’s starting point on the road towards a Charter was, in terms of structure,
one of emulation. Pierre Trudeau, the leading figure behind the enactment of the
Charter as Justice Minister and later Prime Minister, set out to replicate the American
approach to rights protection. In 1969, the Trudeau government set out its position
on a proposed Charter (to be contained in the Canadian Constitution), stating that
“it would limit the power of governments and would override ordinary governmental
action—even duly enacted statutes—which invaded those rights.”44 “[M]aintenance
of the principles of the Constitution” would be “enforced[d]” by the courts.45
During the decade and a half of debate and negotiation leading up to its enactment, Canada’s provinces, some of which were opposed to the federal government’s
plans for a Charter, secured two compromises that allow legislatures to create exceptions to rights. First, the limitations clause, contained in section 1, permits legislatures to impose limits on rights as long as they are reasonable, prescribed by law, and
Hogg and Bushell conclude that “the critique of the Charter based on democratic legitimacy cannot
be sustained”: Hogg & Bushell, supra note 37, at 105. In the face of subsequent critique, Peter Hogg
later resiles from this position, stating they “should not have claimed that we had answered the countermajoritarian object to judicial review—that went too far—but we were surely right to say that our finding
that the decisions of the Court were not usually the last word should at least transform the debate about
the legitimacy of judicial review”: Peter W. Hogg, Discovering Dialogue, 23 Sup. Ct. L. Rev. (2d) 3, 4 (2004).
40
Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 17 (1962).
Theories of dialogue are less suited to addressing the many other concerns related to rights-based judicial
review, for example, that it debilitates and distorts political discourse and encourages legislative abdication of difficult issues.
41
The centrality of differentiation is manifest from the opening section of Hogg and Bushell’s article: Hogg
& Bushell, supra note 37, 77–79.
42
Constitution Act, 1982, §§ 24, 52. The power of judicial review is entrenched against amendment by
ordinary legislative enactment: Constitution Act, 1982, pt. V.
43
Choudhry, supra note 6.
44
Pierre E. Trudeau, The Constitution and the People of Canada: An Approach to the Objectives of Confederation,
the Rights of People and the Institutions of Government 18 (1969).
45
Id. at 38.
39
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demonstrably justified in a free and democratic society. Second, the notwithstanding
or override clause, contained in section 33, permits legislatures to declare, by express
legislation, that a law will operate notwithstanding certain rights.46
By the 1990s, concerns about the democratic legitimacy of rights-based judicial review had begun to frequent discussions of Canadian constitutional law.
Justice Iacobucci observed in 1998 that “it seems that hardly a day goes by without some comment or criticism to the effect that under the Charter courts are
wrongfully usurping the role of the legislatures.”47 Section 33 had proven to be
a contestable, uncertain ameliorating factor primarily due to its desuetude.48
Canadian legislatures have rarely invoked the notwithstanding clause—the federal legislature, for example, has never used it—leading some commentators to
go so far as to suggest that a constitutional convention barring its invocation is
under development.49 Hogg and Bushell state that the notwithstanding clause
is “relatively unimportant, because of the development of a political climate of
resistance to its use”.50 For the same reason, Jeremy Waldron counts the Charter
as equivalent to the US BoR in his argument against strong-form judicial review,
stating that his thesis in respect of Canada is “affected only slightly by the formal
availability of the override.”51
3.2. Dialogue as differentiation
Following the failure of section 33 to placate concerns about rights-based judicial
review, two theories of dialogue—dialogue as legislative responsive and dialogue as
judicial deference—develop that purport to distinguish the Canadian Charter from
the US BoR by addressing the issue of judicial finality. Dialogue as legislative response,
which is initially proposed by Hogg and Bushell and subsequently taken up with most
enthusiasm by Kent Roach,52 posits that the Canadian Charter does not frustrate
democratic decision-making because legislatures are able to reverse, modify and avoid
judicial decisions using the ordinary law making process.53
The provision is not applicable to all Charter rights and invocations expire after a period of five years, but
are renewable.
47
Vriend v. Alberta, [1998] 1 S.C.R. 493, ¶ 130.
48
Cf. Jeffrey Goldsworthy, Judicial Review, Legislative Override, and Democracy, 38 Wake Forest L. Rev. 451
(2003).
49
As early as 1991, Andrew Heard describes the reluctance to invoke § 33 as an “embryonic rule[] that
[may] go on to acquire enough support to be transformed into a higher class of convention”: Andrew
Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics 147 (1991). See also Mark
Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian
Difficulty, 94 Mich. L. Rev. 245, 296 (1995).
50
Hogg & Bushell, supra note 37, at 83.
51
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1357 (2006).
52
See, e.g., Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001); Kent
Roach, Dialogic Judicial Review and its Critics, 23 Sup. Ct. L. Rev. (2d) 49 (2004); Kent Roach, Dialogue or
Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the United States, 4 Int’l J. Const.
L. 347 (2008).
53
Hogg & Bushell, supra note 37, at 79.
46
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881
Hogg and Bushell point to four features of the Charter that facilitate this form of
dialogue: the notwithstanding clause, the limitations clause, the qualified nature of
many Charter rights, and the discretion given to legislatures by the right to equality
(§15). Later scholars add to this list, pointing to the power to refer abstract questions
to courts and the judicial practice of issuing suspended declarations, which provides
legislatures with a grace period to enact new legislation before a declaration of invalidity comes into effect.54
Dialogue as legislative response appears to offer a more robust answer to the problem of judicial finality than section 33 per se because a stronger case can be made
that it exists in practice. Hogg and Bushell conduct a statistical survey finding that
legislatures responded in eighty percent of cases where courts invalidated legislation
under the Charter.55 Supporters of dialogue can claim that legislatures are not only
able to but do in fact respond to invalidations by enacting new statutes that achieve,
albeit in adjusted form, their desired policy objectives. Consequently, judicial review
does not foreclose democratic decision-making for in most instances a legislative reply
is forthcoming.
Subsequent scholars point to a number of deficiencies with relying on dialogue as
legislative response to differentiate the Charter from the US BoR.56 Of the four features Hogg and Bushell identify, only one is appreciably distinct: the notwithstanding clause. With respect to the limitations clause, while the US BoR does not have a
similar provision, it is well established that American courts understand rights to be
limited, even those expressed in absolute terms.57 With respect to the qualified nature
of rights, the US BoR also contains rights qualified in similar terms. Indeed, among
the examples Hogg and Bushell cite are the Canadian rights against “unreasonable”
search and seizure and “cruel and unusual” punishment.58 Both qualifiers are verbatim copies of the qualifiers found in the US BoR.59 With respect to the right to equality
in the Charter, the equal protection and due process provisions of the US BoR are also
broadly worded and thus capable of multiple forms of implementation.60 This leaves
Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited—Or “Much Ado
About Metaphors,” 45 Osgoode Hall L.J. 2, 14–18 (2007); Roach, Dialogue or Defiance, supra note 52, at
360. The Supreme Court of Canada has acknowledged the role of remedies, such as suspended declarations, in the facilitation of dialogue: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999]
2 S.C.R. 203, ¶¶ 116–118.
55
They equivocate as to whether every form of legislative response is properly understood as dialogue: Hogg &
Bushell, supra note 37, at 97–98. Christopher Manfredi and James Kelly posit that one of the reasons Hogg
and Bushell’s original article employing the term dialogue proved to be attractive to the Supreme Court of
Canada in Vriend v. Alberta was the term’s empirical grounding: Manfredi & Kelly, supra note 38, at 514.
56
See, e.g., Mark Tushnet, Judicial Activism or Restraint in a Section 33 World, 64 U. Toronto L.J. 89 (2002);
Dixon, supra note 38, at 235.
57
Tushnet, supra note 56, at 92 (2002); Stephen Gardbaum, The Myth and the Reality of American
Constitutional Exceptionalism, 107 Mich. L. Rev. 391, 416–431 (2008).
58
Hogg & Bushell, supra note 37, at 87–88.
59
U.S. Const. amends. IV, VIII.
60
U.S. Const. amend. XIV. Note, however, that the scope for legislative response is arguably more restricted in the
US due to the Supreme Court’s interpretation of § 5 of the Fourteenth Amendment: Robert C. Post & Reva
B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 Ind. L.J. 1
(2003). On the differences between Canada and the US in respect of equality, see Choudhry, supra note 6.
54
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the notwithstanding clause, which Hogg and Bushell admit is incapable of differentiating the two instruments by itself.
More fundamentally, dialogue as legislative response is not necessarily indicative
of a distinctive form of institutional interaction on rights.61 American legislatures
commonly respond to judicial rulings on rights.62 Legislative response is perfectly
compatible with the paradigm of judicial supremacy if the legislature’s response is
acquiescence63 or, in the event of non-acquiescence, the judiciary asserts the absolute
primacy of its interpretation and refuses to take into account the legislature’s view.
Dialogue as legislative response thus serves in many respects to underscore the similarities, not differences, between the Canadian Charter and the US BoR.64
Dialogue as judicial deference, a later theory articulated in greatest detail by
Rosalind Dixon,65 focuses on “second look” cases. This refers to situations where a
legislature enacts a statute that a court invalidates for infringing a Charter right (the
first look case), the legislature responds by enacting a second statute that does not
wholly accord with the findings in the first look case, and the law is then challenged
before the courts (the second look case). Dialogue occurs in the second look case if
the court affords some degree of deference to the legislature’s interpretation of the
right as expressed in the response legislation.66 Deference is not total—courts continue to require legislatures to make a good faith attempt to consider and respond to
the court’s views expressed in the first look case—but it captures a structure whereby
each branch engages with and acknowledges the work of the other.67
However, doubts also surround the ability of dialogue as judicial deference to serve
as a meaningful point of distinction between the Canadian Charter and the US BoR.
As this theory focuses on the action of courts—not legislatures, as is the case with
dialogue as legislative response—it is reliant on judicial support. While Dixon gathers
data suggesting that Canadian courts in fact practice deference in second look cases,68
its long-term viability is significantly dependent on supportive judicial pronouncements because the text of the Charter69 provides no direct support for such a principle.
The Supreme Court of Canada has, however, expressly denounced deference in second
look cases. In Sauvé v. Canada (Chief Electoral Officer), Chief Justice McLachlin, writing
for the majority, said:70
Tushnet, supra note 38, at 213–214; Dixon, supra note 38, 242–251.
Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993).
63
Cf. Hogg & Bushell, supra note 37, at 98.
64
Dixon, supra note 38, at 247.
65
Id.; Rosalind Dixon, Weak-form Judicial Review and American Exceptionalism, 32 Oxford J. Leg. Stud. 487
(2012).
66
Cf. James B. Kelly & Matthew A. Hennigar, The Canadian Charter of Rights and the Minister of Justice: Weakform Review Within a Constitutional Charter of Rights, 10 Int’l J. Const. L. 35, 42 (2012).
67
Courts do not submit to the authority of legislatures but give weight to the opinion of legislatures, which
Alison Young calls deference as respect in contrast to deference as submission: Deference, Dialogue and the
Search for Legitimacy, 30 Oxford J. Leg. Stud. 815, 817–818 (2010).
68
See especially Dixon, Weak-form Judicial Review, supra note 65.
69
Rosalind Dixon grounds her theory in § 1 of the Charter, but the provision offers no direct, explicit support for such an approach to interpretation: Dixon, supra note 38, at 252–257.
70
[2002] 3 S.C.R. 519, ¶ 17.
61
62
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the fact that the challenged denial of the right to vote followed judicial rejection of an even
more comprehensive denial, does not mean that the Court should defer to Parliament as part
of a “dialogue.” Parliament must ensure that whatever law it passes, at whatever stage of the
process, conforms to the Constitution. The healthy and important promotion of a dialogue
between the legislature and the courts should not be debased to a rule of “if at first you don’t
succeed, try, try again.”
Both theories of dialogue make, therefore, contestable claims about whether the
Charter establishes an approach to rights protection different from the paradigm of
judicial supremacy exemplified by the US BoR.
4. Dialogue migrates to Australia
For Australian actors, the timing of overseas developments was fortuitous. The
Canadian conception of dialogue emerged at the same time as a new round of inquiries into rights protection began at the sub-national and subsequently national level.
Rights advocates saw the potential for dialogue to influence reform efforts; hence it
quickly rose to prominence as an idea and descriptor. Yet the dual Canadian theories
of dialogue did not traverse the Pacific because Australians eschewed a Charter-style,
constitutionally entrenched rights instrument enforced by courts empowered to invalidate legislation. Dialogue is reengineered to form the basis for differentiating another
approach to rights protection, one sourced in the UK’s Human Rights Act 1998 (UK
HRA), from the preexisting paradigm of legislative supremacy.
4.1. The reception of foreign constitutional ideas in Australia
The British approach comes to dominate Australian debates about rights reform for
it appears to offer a path to discernible hence worthwhile yet modest hence realizable change. Compared to the Canadian approach, the UK HRA is an ordinary statute
and thus easier to enact, modify, and repeal, especially against the background of a
Constitution that is extraordinarily difficult to amend.71 In light of reluctance about
and resistance to rights reform among some segments of the Australian community,72
the British approach presented a more acceptable form of reform because it preserves
a greater degree of legislative power by denying courts the power to invalidate primary
legislation.
While New Zealand’s Bill of Rights Act 1990 (NZ BoRA) also has these characteristics, the UK HRA contains more clearly defined roles for each arm of government,
especially the judiciary. Both Acts direct courts to adopt interpretations of rights that
are compatible with rights, but only the UK HRA specifies that a court may issue a
declaration of incompatibility when a rights-compatible interpretation is not possible.
An amendment to the Australian Constitution must be passed by both houses of federal parliament and,
at a referendum, receive the approval of a majority of voters and a majority of voters in a majority of
states: Australian Constitution, § 128. Since 1901, only eight amendments have been made.
72
David Erdos, The Rudd Government’s Rejection of an Australian Bill of Rights: a Stunted Case of Aversive
Constitutionalism?, 65 Parl. Affairs 359 (2012).
71
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Declarations do not affect the validity, operation, or enforcement of a law; they are
designed to alert the executive and legislature to a court’s finding of incompatibility,
prompting debate within and between the non-judicial arms as to whether the law
should be amended. The UK also goes further than NZ to enjoin the non-judicial arms
in the protection of rights. The UK HRA imposes an affirmative obligation on individual ministers to make a statement of compatibility in respect of every bill placed
before parliament.73 (NZ’s reporting requirement is weaker as it only requires the
Attorney-General to issue a statement when he or she determines that a bill appears
to be inconsistent with rights.74) In connection with but not under the terms of the UK
HRA, a parliamentary Joint Committee on Human Rights was created with a broad
remit over human rights issues, including scrutiny of bills before parliament.75 (NZ
has no equivalent.)
Hogg and Bushell’s 1997 article, and dialogue’s subsequent rise to prominence,
came too late to affect the debates on and drafting of rights instruments in the other
common law countries of NZ, South Africa (enacted in 1996) and the UK.76 The
most one finds is a brief mention of the idea in connection with the UK HRA, where
Home Secretary Jack Straw states that “Parliament and the judiciary must engage in
a serious dialogue about the operation and development of the rights in the Bill . . . .
[T]his dialogue is the only way in which we can ensure the legislation is a living development that assists our citizens.”77 Even in Canada it is a post facto ascription. By
contrast, due to its late arrival to the cause of rights, the legal instruments that are
proposed and adopted in Australia are designed from the ground up with dialogue
in mind.
The combination of dialogue—to describe the objective of reform as the creation
of institutional interaction on rights—and the UK HRA—as a means of realizing this
objective—has a perceptible impact on the direction of debate in Australia. Compare
the parliamentary committees of inquiry into rights protection in Queensland, which
reported in 1998, and New South Wales, which reported in 2001. The Queensland
report makes no mention of dialogue or the UK HRA.78 Three years later, the New
South Wales committee, even though it recommends against the introduction of a
rights instrument, cannot ignore either development. The committee’s report observes
that “[t]he British model was praised by those participants in this inquiry who saw it
Human Rights Act, 1998, c. 42 (Eng.), § 19.
Bill of Rights Act, 1990 (N.Z.), § 7.
75
For a discussion of the Committee’s history and purpose, see Janet L. Hiebert, Parliament and the Human
Rights Act: Can the JCHR Help Facilitate a Culture of Rights?, 4 Int’l J. Const. L. 1 (2006).
76
Although dialogue did not figure in the development of rights instruments in these countries, Canada was
nevertheless an important source of influence: see, e.g., Paul Rishworth, The Inevitability of Judicial Review
Under “Interpretive” Bills of Rights: Canada’s Legacy to New Zealand and Commonwealth Constitutionalism?,
23 Sup. Ct. L. Rev. (2d) 233 (2004).
77
Parl. Deb., H.C. (U.K.) at vol. 314 col. 1141 (24 June 1998).
78
The only reference to dialogue is to a report on regional dialogue on human rights issues: Legislative
Assembly of Queensland, Legal, Constitutional and Administrative Review Committee, The Preservation and
Enhancement of Individuals’ Rights and Freedoms in Queensland: Should Queensland Adopt a Bill of Rights? 57
(Report No. 12, November 1998).
73
74
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885
as facilitating a dialogue between arms of government.”79 Summarizing arguments
presented in favor of a rights instrument, the committee notes:80
Despite differences in emphasis, advocates for a Bill of Rights generally all agreed that a Bill
would change the nature of the relationship between the Judiciary and the Parliament for the
better. While it is difficult to encapsulate the different arguments presented, a summary of the
overall view is that a Bill of Rights would allow a more constructive dialogue or interaction
between the Judiciary and Parliament than currently occurs. There was particular enthusiasm
for the way in which the UK Human Rights Act has formalised this dialogue.
Although this initial reference to dialogue refers to it as interaction between courts
and legislatures, the idea soon acquired additional dimensions, as the next section
discusses.
4.2. Dialogue expands
Australian actors reengineer the idea of dialogue by expanding the scope of institutional interaction to encompass all three arms of government and the community.
This expansion signifies a shift away from the Canadian approach of relying on judicial supervision to enhance protection for rights to one that focuses on improving the
process of law making by creating more points in that process where rights issues are
contemplated and discussed. The object of creating dialogue in its expanded form distinguishes Australia from both Canada and the UK.
The principal objective of the UK HRA is to incorporate the European Convention on
Human Rights (ECHR) into domestic law, or, as a government white paper described
it, to bring rights home.81 The UK’s reform project is, from a constitutional point of
view, an attempt to resolve more rights issues within the country’s legal system. Prior
to the UK HRA, exercises of British executive and legislative power were already being
assessed for compatibility with rights, only in the European Court of Human Rights
(ECtHR) not domestic courts. The pertinent question for the UK was not whether
courts should play a role in the evaluation of rights disputes, but which courts—
Britain’s or Europe’s?
Consequently, even though the UK HRA facially appears to present a weak form
of judicial enforcement (vis-à-vis Canada and the US), the European human rights
system encourages British courts to remedy rights violations through its duty to interpret statutes compatibly with rights and amplifies the significance of declarations of
incompatibility. When British courts identify a rights violation and decide to issue a
declaration of incompatibility, the executive and legislature are free to decide not to
act on the declaration. In these circumstances, however, a complainant can turn to
Strasbourg for redress who, given the identification of a rights violation by a British
court, is likely to succeed. Soon after the UK HRA’s enactment, Lord Chancellor Lord
Legislative Council of New South Wales, Standing Committee on Law and Justice, A NSW Bill of Rights ¶ 4.69
(October 2001).
80
Id. ¶ 5.63.
81
Secretary of State for the Home Department, Rights Brought Home: The Human Rights Bill ch. 1 (October
1997).
79
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Irvine acknowledged the force of declarations despite their non-binding status in
domestic law:
while British courts will not possess the power to strike down legislation which is incompatible
with human rights, their power to issue a declaration of incompatibility is substantial, given
that, in pragmatic terms, it very probably will lead to the amendment of defective legislation.82
As long as the UK remains a signatory to the ECHR and committed to complying
with judgments of the ECtHR,83 the UK HRA vests significant power in courts vis-à-vis
legislatures.84
Despite the textual similarities between the rights instruments in Australia (proposed and enacted) and the UK, Australia does not share the same objective as the UK
(domestic incorporation of the ECHR) or the same constitutional environment (the
ECtHR’s supervisory mechanism). Dialogue becomes the means by which Australians
frame the objective of rights reform and describe the institutional relationship the
reforms purport to create absent the ECHR and ECtHR. The aim is to enhance rights
protection by creating incentives for each arm of government to become aware of
rights issues in the performance of its functions and to respond to what the other arms
of government say on rights. In contrast to a court-centered model, which is premised
on one arm of government supervening the compliance of the others, this approach
is designed to create multiple focal points for rights debate in government: executive
statements of compatibility, executive agencies reviewing existing statutes for their
effect on rights and providing education to the community about human rights, legislative committees, judicial interpretations and declarations of incompatibility, and
executive and judicial responses to declarations. The Canadian conception of dialogue, which is concerned with legislative responses to judicial decisions and judicial
responses to legislative responses, is reengineered in Australia to encompass the entire
law making process and to incorporate all three arms of government. Dialogue thus
includes additional points of interaction such as legislative responses to executive
statements of compatibility, legislative responses to its own committee reports and,
informally, the public to all of these.
The non-judicial elements are not added as an afterthought but are the centerpiece
of Australia’s approach to rights protection. Indeed, this is the point of distinction
between Australia and the UK: with the British approach, the non-judicial elements
are to some extent subsidiary to the judicial elements because the UK HRA incorporates the ECHR, a court-centered model of rights protection, into domestic law. As
Danny Nicol observes, “the HRA—a ‘third-wave’ Bill of Rights designed to involve
Lord Irvine, Sovereignty in Comparative Perspective: Constitutionalism in Britain and America, 76 N.Y.U.
L. Rev. 1, 19 (2001). See also Parl. Deb., H.L. (U.K.) at vol. 582 cols. 1228–1229 (Nov. 3, 1997) (Lord
Irvine). Cf. Parl. Deb., H.C. (U.K.) at vol. 317 col. 1301 (Oct. 21, 1998) (Jack Straw). See generally Danny
Nicol, The Human Rights Act and the Politicians, 24 Leg. Stud. 451, 455–459 (2004); Janet L. Hiebert,
Governing under the Human Rights Act: The Limitations of Wishful Thinking, Pub. L. 27, 31–32 (2012).
83
This was the position of the government at the time of UK HRA’s enactment: Parl. Deb., H.L. (U.K.) at vol.
582 cols. 1227–1228 (Nov. 3, 1997) (Lord Irvine).
84
Aileen Kavanagh, Constitutional Review under the UK Human Rights Act 2 (2009).
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887
judiciary, executive and legislature in the rights project—has been tacked on to the
ECHR—a ‘second-wave’ human rights arrangement based on judicial supremacy.”85
The Australian Capital Territory (ACT) was first to endorse the expanded conception of dialogue and to enact legislation in pursuit of this objective. In 2002, Chief
Minister and Attorney General Jon Stanhope appointed a consultative committee to
inquire into a possible bill of rights for the ACT. In its 2003 report, the committee said
that it was “persuaded that the protection of rights will be best achieved if the three
branches of government—the legislature, the executive and the judiciary—can have
an ongoing and public dialogue about rights.”86 The ACT government accepted the
committee’s recommendations, enacting the Human Rights Act 2004 (ACT HRA).
Before the ACT Legislative Assembly, Stanhope stated that the law “will promote a
dialogue about human rights within the parliament, between the parliament and the
judiciary, and, most importantly, within the Canberra community.”87
The Victorian government closely followed the ACT, announcing in 2005 the
appointment of a human rights consultation committee. In its report published in
2006, the committee recommended the introduction of a rights instrument textually
and structurally similar to that in the ACT, stating:88
[The proposed instrument] would be based on the idea of “dialogue” between the community
and the different arms of government. It would ensure that human rights are considered at
the various levels of government, including in policy development, Cabinet decision-making,
legislative drafting, parliamentary debate and judicial interpretation.
The committee proposed that the institutional interaction, or dialogue, would
encompass the entirety of government:89
In focusing on the three main institutions of government, the Committee recognises the importance of developing a model where each institution has an important and identifiable role
in protecting human rights, but is also engaged in a meaningful dialogue with the other two
arms of government to ensure that the best human rights outcomes are achieved.
The Victorian government accepted most of the committee’s recommendations,
enacting the Charter of Human Rights and Responsibilities Act 2006 (the “Victorian
Charter”). Before Victorian Parliament, Attorney General Rob Hulls stated that “[t]his
bill promotes a dialogue between the three arms of the government—the Parliament,
the executive and the courts—while giving Parliament the final say.”90 Both the ACT
and Victorian instruments build on the British model to create roles for each arm of
government and multiple points of interaction between them.
Nicol, supra note 82, at 476.
ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act ¶ 3.51 (May 2003).
87
Parl. Deb., A.C.T. Legislative Assembly (Aus.) at 4250 (Nov. 18, 2003).
88
Victorian Human Rights Consultation Committee, Report: Rights, Responsibilities and Respect 67 (2006) [hereinafter Victorian Hum. Rts. Report]. The committee understood dialogue in the broadest sense, noting its
key aspects to include, inter alia, bureaucrats taking rights into account when developing policy, audits
of government departments for compliance with rights, statements of compatibility presented to parliament by the Attorney-General, a parliamentary human rights scrutiny committee, and the court’s
interpretive and declaration powers: id. at iii–iv.
89
Victorian Hum. Rts. Report, supra note 88, at 67.
90
Parl. Deb., Victorian Legislative Assembly (Aus.) at 1290 (May 4, 2006).
85
86
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Other Australian jurisdictions followed suit. Tasmania and Western Australia in
2006 and 2007, respectively, initiated inquiries that resulted in recommendations for
the introduction of rights instruments based on the idea of dialogue.91 The governments of both states postponed acting on the recommendations pending the outcome
of developments at the federal level.92
In 2007, the Australian Labor Party formed government at the federal level. As part
of its election platform, it committed to launching a public inquiry into the protection
of human rights in Australia.93 The National Human Rights Consultation (NHRC)
was launched, undertaking an extensive survey of community opinion on rights and
in 2009 recommending the introduction of a rights instrument “based on the ‘dialogue’ model.”94 The committee noted:95
Most of the submissions that discussed [the] subject [of what form a Human Rights Act should
take] expressed support for the dialogue model. The Committee agrees that, were Australia to
adopt a Human Rights Act, the dialogue model is the preferred model: it strikes the best balance
between parliamentary sovereignty and judicial protection of human rights.
The committee endorsed dialogue in the following terms:96
If parliament were minded to legislate for an Australian Human Rights Act, the Committee recommends a model that provides the means for each branch of government to play its specialist
role. This is sometimes called the “dialogue” model, although critics of the terminology rightly
point out that it does not lead to conversation. Rather, each party contributes and responds to
the contribution of other parties to the dialogue.
The terms and structure of the instrument would have followed the contours of
what was adopted in the ACT and Victoria.97
To the disappointment of rights advocates, seven months later the federal government announced its decision not to seek to enact a rights instrument. Unassisted by a
campaign run against the committee’s recommendations in a national newspaper,98
Tasmania Law Reform Institute, A Charter of Rights for Tasmania 1 (Report No. 10, October 2007); Western
Australian Consultation Committee for a Proposed WA Human Rights Act, A WA Human Rights Act 134
(November 2007).
92
National Human Rights Consultation Committee, Report 240 (September 2009) [hereinafter National Hum.
Rts. Report].
93
The Australian Labor Party’s election marked the end of eleven years of government by the Australian
Liberal Party, which was opposed to the introduction of a rights instrument: Frank Brennan, An Australian
Fence-Sitter’s Reading of Huscroft’s Living Tree Concerns, 25 U. Queensland L.J. 25, 26–27 (2006).
94
National Hum. Rts. Report, supra note 92, at recs. 18 & 19 at xxxiv.
95
Id. at 303.
96
Id. at 370.
97
Id. at 370–71.
98
The Australian newspaper provided a platform for a number of rights opponents. Paul Kelly, Editor-At-Large,
wrote that the National Hum. Rts. Report “testifies to the blind utopianism of the human rights cause” and that
a rights instrument, if enacted, “will lead to bigger and weaker government, more bureaucracy, more litigation, a politicisation of the judiciary, a more polarised community, the undermining of much of the existing
human rights protections built over decades and, ultimately and ironically, a failure to make any real improvements in human rights”: Paul Kelly, Human Rights Report Poisoned Chalice, The Australian, Oct. 10, 2009, at
14. See also Janet Albrechtsen, Rights Charter Would Transport Us to 2009BC, The Australian, Jan. 14, 2009, at
12; Bob Carr, Lawyers Are Already Drunk with Power, The Australian, Apr. 24, 2008, at 14; James Allan, Jurists
No More Qualified Than Plumbers on Charter, The Australian, Sep. 4, 2009, at 32. See also Erdos, supra note 72.
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opposition from certain sectors of the community99 and the Australian Liberal Party,100
the government decided the issue was not worth the potential political cost.101
The federal government did, however, undertake legislative reform. In 2011, it
enacted legislation requiring each bill introduced into parliament to be accompanied
by a statement of compatibility with rights and establishing a joint parliamentary
committee to scrutinize bills for compliance with rights.102 No rights are set out in the
statute; they are defined by reference to seven international human rights treaties to
which Australia is a party. The legislation provides that executive statements of compatibility are “not binding on any court or tribunal.”103
4.3. Dialogue as differentiation from the paradigm of legislative
supremacy
As in Canada, dialogue performs more than a descriptive role in Australia. I submit
that Australian actors reengineer the idea to differentiate the country’s approach
from preexisting practice under the paradigm of legislative supremacy. Dialogue is
invoked to claim that the Australian approach, which evinces important points of
continuity with the paradigm of legislative supremacy, is nevertheless capable of
enhancing protection for rights. As in Canada, whether dialogue succeeds in this task
is a point of contestation.
Lacking constitutional entrenchment and any judicial power to invalidate incompatible statutes, Australia’s approach to rights protection cannot be equated with the
US BoR.104 Australian rights advocates did, however, face the challenge of differentiating the proposed reforms from practice under the preexisting constitutional structure
because many elements resemble extant arrangements.
With respect to the executive, the agencies set up to review existing laws for compatibility with rights are similar to preexisting institutions that perform this role, such as
ombudsmen and law reform commissions.
With respect to the legislature, for several decades Australia has had a system of
permanent parliamentary committees to examine proposed laws for their impact on
rights.105 A notable example at the federal level is the Senate Standing Committee for
the Scrutiny of Bills, which was established in the early 1970s and is appointed to
report on, inter alia, whether laws “trespass unduly on personal rights and liberties.”106
The Australian Christian Lobby was, for example, strongly opposed: Jim Wallace, Rights Overkill Isn’t
Majority View, The Australian, Oct. 13, 2009, at 14.
100
Shadow Attorney General George Brandis stated that the Australian Liberal Party was opposed to the
dialogue model: Michael Pelly, Charter Ruled Out, Gap Filler Sought, The Australian, Jun. 19, 2009, at 27.
101
Joel Gibson, Human Rights Act Canned as Election Looms, The Sydney Morning Herald, Apr. 19, 2010, at 5.
102
Parliamentary Scrutiny (Human Rights) Act 2011 (Aus.).
103
Id. § 9(3).
104
This did not stop critics from claiming that the Australian approach to reform nevertheless vested too
much power in courts: see, e.g., James Allen, You Don’t Always Get What You Pay For: No Bill of Rights for
Australia, 24 N.Z. Uni. L. Rev. 179 (2010).
105
Odgers’ Australian Senate Practice 445–447 (Harry Evans & Rosemary Laing eds., 13th ed., 2012).
106
Parliament of Australia, Senate Standing Order No. 24 (June 2009).
99
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Legislative rights review may build on this practice, but the character of reform is not
conceptually or institutionally distinct from it.
With respect to the judiciary, requiring courts to interpret laws consistently with
rights is broadly consistent with preexisting judicial practice under the common
law. Pursuant to the principle of legality,107 an established element of statutory
interpretation in Australia, “fundamental rights cannot be overridden by general or
ambiguous words.”108 What the interpretive provision adds to the principle of legality in terms of the relationship between courts and legislatures is open to question.
It may enlarge how far courts can go to render a rights-compatible interpretation, as
occurred in the UK.109 Or it may be construed as broadly coextensive with the common law rule, which is, incidentally, what has occurred in Australia.110 (In which
case, the provision’s function is to increase the catalogue of rights against which statutes are interpreted.111)
Resistance to reform in Australia placed rights advocates in a tight situation. On
the one hand, opposition to codified rights led advocates to focus on incremental
reforms that maintain the essential elements of the existing constitutional system,
notably primacy of the legislative branch. On the other hand, rights advocates had to
point to some benefit of pursuing reform. It is the high wire act of demonstrating that
the reforms do something to make them worthy of enactment but, at the same time,
not too much. George Williams, a prominent rights advocate who was chair of the
Victorian committee of inquiry, captured this delicate balance when he described the
Victorian Charter as marking a “decisive departure” from preexisting practice while
also being “an innovative, if modest” change to the system of government.112
A reengineered idea of dialogue helps meets the challenge of differentiation by supplying an objective that is distinguishable from existing practice yet compatible with
its incremental character. Shifting the frame of analysis from each individual element
of the model to their cumulative effect, dialogue suggests the value is in the sum total
of interactions between the arms of government. Each element may be modest, but in
combination they potentially create a pattern of institutional reflection and interaction on rights, provoking debate and contestation on the meaning and scope of rights
On the centrality of the principle of legality in Australia, see J.J. Spigelman, Principle of Legality and the
Clear Statement Principle, 79 Aus. L.J. 769 (2005); Dan Meagher, The Common Law Principle of Legality in
the Age of Rights, 35 Melb. U. L. Rev. 449 (2011).
108
R. v. Secretary of State for the Home Department; Ex parte Simms [2000] 2 A.C. 115, 131, quoted by
Gleeson C.J. in Daniels Corporation v. Australian Competition and Consumer Commission [2002] HCA
49, (2002) 213 C.L.R. 543, ¶ 106. See also Momcilovic v. The Queen (2011) 245 C.L.R. 1, ¶¶ 43–45
(French C.J.).
109
Ghaidan v. Godin-Mendoza [2004] 2 A.C. 557. In the UK context, see Philip Sales, A Comparison of the
Principle of Legality and Section 3 of the Human Rights Act 1998, 125 L. Q. Rev. 598 (2009).
110
Momcilovic v. The Queen (2011) 245 C.L.R. 1, ¶ 565 (Crennan and Kiefel J.J.). See also id. ¶ 51 (French
C.J.), ¶¶ 162–171 (Gummow J., Hayne J. agreeing), ¶ 684 (Bell J.). In respect of N.Z., see Ngati Apa Ki Te
Waipounamu Trust v. R. [2000] 2 N.Z.L.R. 659, 712 (Elias C.J.).
111
The principle of legality may already be expanding to include review against the full panoply of human
rights: Meagher, supra note 107, at 464–466.
112
George Williams, The Victorian Charter of Rights and Responsibilities: Origins and Scope, 30 Melb. U. L. Rev.
880, 881 (2006).
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that will, in turn, enhance their protection. Or that, at least, is the dialogic aspiration. Hence the committees of inquiry often describe the reforms as designed to foster “a human rights-respecting culture” in government and, by extension, across the
community.113
Essential to the creation of institutional dialogue, therefore, is the modification of government behavior. Without new forms of reflection and interaction, the reforms fail.
The difficulty is that the rights instruments (proposed and enacted) lack the most obvious means of prompting the executive and legislature to consider and respond to judicial findings on rights: invalidation. The declaration of incompatibility (or equivalent)
mechanism thus assumes critical importance because it becomes the means by which
courts prompt the executive and legislature to respond to a judicial ruling on rights.114
For this reason, Australian actors stress that the declaration (or equivalent) mechanism is essential to the facilitation of dialogue. The ACT Chief Minister and Attorney
General, for example, stated:115
[t]he facility for a declaration of incompatibility is a vital component of the dialogue model this
bill seeks to establish. While preserving parliamentary sovereignty, the declaration will function as a signal to the government and the [Legislative] Assembly. It will make an important
contribution to rational and coherent debate about human rights issues.
The Victorian committee of inquiry observed that the power of courts to issue
declarations of incompatibility is “important to the effectiveness of the [Victorian]
Charter. They are a channel through which the dialogue between the courts and the
Parliament takes place.”116
Uncertainty about the constitutional validity of declarations of incompatibility
dominated debate at the federal level.117 In light of these concerns, the NHRC committee concluded that “[t]he court declaration is not essential, but it is the most precise mechanism available for instigating further review of the law, with the executive
reporting back to parliament.”118 The committee suggested that, if the power to issue
declarations were not to be included due to constitutional concerns, an alternative
mechanism for achieving notification and review should be adopted.119
ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act ¶¶ 2, 2.84, 2.88 (May
2003); Victorian Hum. Rts. Report, supra note 88, at 2, 13, ch. 5; National Hum. Rts. Report, supra note
92, at ch. 6. See also Hilary Charlesworth, Who Wins Under a Bill of Rights?, 25 U. Queensland L.J. 39,
51 (2006). A similar idea was associated with the UK HRA: Nicol, supra note 82, at 453–455; Hiebert,
supra note 82.
114
Human Rights Act, 2004 (A.C.T.) (Aus.), § 33; Charter of Human Rights and Responsibilities Act, 2006,
(Vic.) (Aus.), § 37.
115
Parl. Deb., A.C.T. Legislative Assembly (Aus.) at 4248 (Nov. 18, 2003).
116
Victorian Hum. Rts. Report, supra note 88, at 86.
117
National Hum. Rts. Report, supra note 92, at 326–330, 373–376. These concerns proved to be well
founded: Momcilovic v. The Queen (2011) 245 C.L.R. 1.
118
National Hum. Rts. Report, supra note 92, at 375.
119
One suggestion was to empower the parties to the case or the Australian Human Rights Commission to
alert parliament to findings of incompatibility and, upon receipt of this information, create a procedure,
such as use of parliamentary standing orders, to trigger a review of the case and impugned law by a
parliamentary committee.
113
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As the NHRC committee states, the most important aspect of the mechanism is to
alert the legislature to a court’s finding of incompatibility and to require the executive to provide a response to the legislature. Even if the executive ultimately decides to
leave the law unchanged, the requirement to respond ensures that, first, the executive
considers the court’s opinion and, second, the legislature is provided with an opportunity to debate the matter. Without such a mechanism, no pressure is placed on the
executive and legislature to confront a court’s findings beyond what pressure is ordinarily placed on them to address any court decision.
The declaration (or equivalent) mechanism is thus a key means by which the
Australian approach seeks to establish a novel form of institutional interaction.
Here one sees how the idea of dialogue is reengineered. In Canada, debate centers
on whether its court-centered model provides an opportunity for legislatures to play
a role in the resolution of rights issues when they so desire. Dialogue suggests two
points—response legislation and second look cases—where space might be created.
By contrast, in Australia, the focus is on devising a mechanism to ensure legislatures
will confront rights issues. The declaration (or equivalent) mechanism is central to the
Australian conception of dialogue because it is the means of ensuring legislatures will
play a role. The potential danger with the Australian approach is not legislative incapacity, as it is in Canada, but legislative inaction.
An additional way in which the Australian idea of dialogue serves to differentiate
the model from preexisting practice is by counseling against selective implementation.
Each element of the model builds on, but is capable of operating independently of, the
other elements. Given persistent concerns about judicial involvement in the protection
of rights, a government might be inclined to implement all but the judicial element.
The fewer elements included, the more the instrument is likely to resemble practice
under the status quo ante.
By characterizing the objective of reform as the facilitation of dialogue between the
three arms of government and between government and community, the metaphor
implies that selective implementation is not an option—it is a distortion of the model.
Dialogue, after all, requires the participation of more than one party; to achieve dialogue across all three arms of government requires the participation of each. Courts
cannot be left out of this dialogue because they, it is claimed, bring a unique perspective to rights issues. Hilary Charlesworth, who was chair of the ACT committee that
recommended the enactment of the ACT HRA, wrote that “[t]he judiciary is … an
important participant in the rights conversation because it has to confront specific
claims of rights violations in a way that the government and the community do
not.”120 The idea of dialogue thus seeks to ensure the judiciary is not removed from
the model. This was not, however, always successful, as demonstrated at the federal
level where reforms were enacted but the judicial element was omitted.
It is open to question whether Australia’s dialogic approach to rights protection will
enhance rights protection by producing novel forms of institutional interaction on
rights issues. A great deal depends on how each institution exercises its new powers and
Charlesworth, supra note 113, at 51.
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responsibilities and what patterns of inter-institutional interaction are generated. As
mentioned above, declarations of incompatibility are an important element of the overall scheme of facilitating dialogue because they prompt the executive and legislature to
reevaluate statutes. The High Court of Australia has, however, ruled that declarations
of incompatibility would be constitutionally invalid at the federal level121 and two judges
cautioned against their use in criminal cases at the state level.122 Indeed, the Court has
expressed reservations about this approach to rights reform, describing the metaphor of
dialogue as “inapposite,” “distract[ing],” “apt to mislead,” and “inappropriate.”123
5. Reengineering and the new Commonwealth model
Existing comparative accounts of rights instruments in Australia, Canada, New Zealand,
and the UK tend to analyze them against a spectrum with the paradigm of legislative
supremacy at one end and the paradigm of judicial supremacy at the other.124 They
claim that the instruments purport to occupy a “middle”125 ground or “intermediate”126
position on this spectrum and then evaluate their success in maintaining it. Each country is not assigned the same position; for example, the Canadian Charter hews closer to
the paradigm of judicial supremacy and the NZ BoRA hews closer to the paradigm of
legislative supremacy. Developments across the four countries are, however, characterized as similar because they introduce rights-based judicial review while leaving legislatures with the ability to have the final say. A comparison of dialogue, as it develops in
Canada and is reengineered in Australia, complicates these accounts in two respects.
5.1. The illusive middle ground
First, the need to devise and rely on theories of dialogue demonstrates the depth
of difficulty associated with establishing novel forms of institutional interaction
on rights. Debates about dialogue are debates about whether it is possible to identify a point—any point—of constitutional difference. As the paradigms of judicial and legislative supremacy are complex constitutional alignments that do not
exclude the other branch (in the case of judicial supremacy, the legislature; in
the case of legislative supremacy, the judiciary), supporters of the Australian and
Canadian approaches to rights reform have faced searching questions about their
distinctiveness.
Momcilovic v. The Queen (2011) 245 C.L.R. 1. See generally Will Bateman & James Stellios, Chapter III of
the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights, 36 Melb. U. L. Rev. 1 (2012).
122
Momcilovic v. The Queen (2011) 245 C.L.R. 1, ¶ 606 (Crennan and Kiefel J.J.).
123
Id. ¶ 95 (French C.J.), ¶ 146 (Gummow J., Hayne J. agreeing), ¶ 534 (Crennan and Kiefel J.J.).
124
See, e.g., Gardbaum, The New Commonwealth, supra note 9, at 710; Janet L. Hiebert, Constitutional
Experimentation: Rethinking How a Bill of Rights Functions, in Comparative Constitutional Law 298, 299
(Tom Ginsburg & Rosalind Dixon eds., 2011).
125
Gardbaum, The New Commonwealth, supra note 9, at 710; James B. Kelly & Matthew A. Hennigar, The
Canadian Charter of Rights and the Minister of Justice: Weak-form Review Within a Constitutional Charter of
Rights, 10 Int’l J. Const. L. 35, 35 (2012).
126
Gardbaum, Reassessing the New Commonwealth Model, supra note 9, at 169.
121
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For Canada, it is not merely the desuetude of the notwithstanding clause that
raises questions as to whether the Charter is distinguishable from the US BoR. It is
also that the paradigm of judicial supremacy, even in its American guise, is more
layered and complex than epigrammatic expressions such as “judges have the final
say” suggest. Hogg and Bushell’s conception of dialogue as legislative response falls
short because it is possible to claim that American legislatures are also able to and
do in fact respond to judicial invalidations.127 As in Canada, American courts generally leave legislators with some latitude to achieve their desired policy objective by
alternate means. Indeed, the character of judicial decision-making, especially in the
realm of open-textured rights guarantees, necessarily leaves room for response—it
is almost impossible for courts to shut down all avenues of response in a single decision. American legislatures may respond less frequently than Canadian legislatures,
but this might be due to how easy it is to enact laws in a presidential as opposed to a
parliamentary system. If this is the case, what differentiates the two countries is their
legislative structures, not their rights instruments. And, if Canadian courts reject
the principle of deference in second look cases, this understanding of dialogue also
erodes as a point of distinction.
With Australia, the difficulty is that, in respect of rights, the claim that “parliament is sovereign” fails to capture the flexibility inherent in the paradigm of legislative
supremacy, especially regarding the judicial role. Absent a judicially enforced rights
instrument, other constitutional mechanisms exist to direct legislation to rightscompatible outcomes. The UK, NZ, and, in particular, Australian rights instruments
draw on these preexisting mechanisms, which poses the question: what, precisely, is
new? Dialogue is central to the Australian approach to rights reform precisely because
the similarities are so extensive. This question has only intensified following the reservations expressed by the High Court about the one truly innovative feature (declarations of incompatibility).
Mark Tushnet speculates that a middle or intermediate position is likely to be
unsustainable because institutional practice will gravitate towards a pattern of either
judicial or legislative supremacy.128 His argument presupposes that the instruments
purport to occupy a middle ground from which they are liable to depart. By contrast,
my argument is that the Australian and Canadian instruments start deeply embedded within the preexisting paradigms. For each country, the relevant question is not
whether the instrument will drift towards one of the paradigms but instead whether,
given their overwhelming consistency with the preexisting paradigms, the instruments are capable of facilitating different, novel patterns of institutional interaction.
For the comparativist, the shared language of dialogue can mislead for it masks
important dissimilarities. To argue that Australia and Canada’s rights instruments
belong to the same family, no matter how broadly defined, requires relying on features—in Canada, the notwithstanding clause; in Australia, declarations of incompatibility—that have not become central to or characteristic of the respective models.
Friedman, supra note 62, at 654.
Tushnet, supra note 11.
127
128
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The notwithstanding clause is an exception to the general scheme of judicial review
the Charter establishes. In Australia, the principal responsibility of courts is to interpret legislation consistently with rights (this is a requirement); declarations of incompatibility are an option of last resort (only when interpretation is not possible may
these be issued). To highlight the notwithstanding clause and the declaration mechanism risks presenting, therefore, a distorted picture of both. Comparative accounts
that describe the instruments in terms of a middle ground must be careful not to present a picture that emphasizes what is exceptional and problematic to the reduction or
exclusion of what is characteristic and accepted.
5.2. Processes and outputs
The way Australians reengineer the concept of dialogue underscores the importance
of examining law making processes, not just rights outputs, when undertaking comparative analysis in this area. What distinguishes the rights instruments in these four
Commonwealth countries is, according to existing accounts, their ability to extract
rights outputs from both arms of government—courts contribute to the resolution of
rights issues while legislatures maintain the ability to have their view (their output)
prevail.
The Australian idea of dialogue is only indirectly concerned with outputs and is
instead primarily directed to altering processes. The premise of its approach is that
improving the procedures by which laws are drafted, enacted, and applied will ultimately enhance rights protection. Although related, what factors into the law making process is conceptually distinct from which arm of government is more capable
of protecting rights. The object of Australia’s rights reform is not to legally restrict
what decisions legislatures may take on matters that implicate rights. (In this respect,
Australia differs from Canada where courts legally control legislatures through invalidation.) Instead, the reforms seek to establish a set of procedures for legislatures to
follow before taking a decision. These include receiving the input of the executive
(statements of compatibility), a subset of its membership (parliamentary committees)
and, after enactment, the judiciary (through their interpretations and occasionally
declarations of incompatibility). All seek to ensure that the legislature, first, is aware
of a statute’s rights implications and, second, takes public responsibility for decisions
to enact and maintain laws that may violate rights. Rights advocates obviously envisage improved processes leading to improved outputs. Broadly similar characterizations can be assigned to developments in NZ and the UK,129 although they apply with
less force because the Australian approach was designed from the ground up with the
objective of improving processes, through institutional dialogue, in mind.
Judicial review, and its reversibility, is the central preoccupation of existing comparative
accounts. Mark Tushnet underscores this focus in his preferred choice of term: weak-form
judicial review. Yet the Australian idea of dialogue is less focused on modifying the balance
Hiebert, supra note 82; David Dyzenhaus, Murray Hunt & Michael Taggart, The Principle of Legality in
Administrative Law: Internationalisation as Constitutionalisation, 1 Oxford U. Commonw. L.J. 5, 29–32
(2001).
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of power between courts and legislatures than with altering the frequency with which
and the way in which rights factor into the exercise of public power. George Williams,
for example, describes the Victorian Charter as being designed “to prevent human rights
problems arising in the first place by improving the work of government and Parliament in
the making and application of laws and policies.”130 When one is concerned with prophylaxis, who gets the final say is of diminished relevance and thus importance.
Australia’s reengineered idea of dialogue shifts the focal point from which institution sits at the end of the line to the patterns of inter-institutional interaction
that form around rights issues. It indicates that a principal objective of a rights
instrument can be to direct the evaluation and determination of questions of rights
upstream to the stages of law making that occur prior to rights-based judicial
review. What distinguishes a rights instrument of this kind from the paradigms of
judicial supremacy and legislative supremacy is not necessarily a reallocation of the
power to have the final word. Instead, distinction comes from its success in reshaping how each institution of government approaches those tasks that implicate rights
(prioritizing, drafting, enactment, implementation, interpretation and adjudication)
and, importantly, in fostering more active interactions between institutions on the
meaning of rights.
My intention is not to evaluate whether Australia’s approach is a more appropriate
means of rights protection than others or whether it succeeds in its objectives. (To the
extent that the UK HRA incorporates the same objective of shared responsibility for
rights protection, Janet Hiebert suggests it has not succeeded.131) It is to emphasize
that the study of reengineering highlights an alternative understanding of developments in Australia and Canada that is underexamined in existing comparative analyses. Situating rights instruments along a spectrum between judicial and legislative
supremacy constitutes a partial account because judicial and legislative outputs are
not necessarily the sole focus.
6. Conclusion
My case study of constitutional reengineering thus presents a complex portrayal of
similarity and difference in Australian and Canadian approaches to rights reform. On
the one hand, actors speak in the same language of dialogue, are similarly aware of
the compromises involved in increasing judicial involvement in rights protection, and
are equally concerned with differentiation. On the other hand, the starting points are
different—for Australia, the paradigm of legislative supremacy; for Canada, the paradigm of judicial supremacy—as are the end points—for Australia, dialogue as process;
for Canada, dialogue as legislative response and judicial deference.
Williams, supra note 112, at 893. In this respect, it is notable that the Victorian committee did not recommend the inclusion of the rights to life and self-determination due to their contentious nature: id. at
895–896. See also Charlesworth, supra note 113, at 53.
131
Hiebert, supra note 82.
130
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My case study of constitutional reengineering also points to the limits of constitutional engineering. Australian actors sought to introduce a form of rights protection that facilitates institutional dialogue. Yet the country’s experience to date, as well
as that of Canada, suggests that whether this objective is realized depends in large
part on factors outside the drafters’ control. Both Australian and Canadian debates
about dialogue point to the importance of factors extrinsic to the rights instruments
in determining whether either jurisdiction succeeds in establishing a novel pattern of
institutional practice. Significant limits are placed on actors operating during the preenactment stage to engineer dialogic outcomes.
In Canada, the desuetude of the notwithstanding clause is a product of political
conventions and practices developing in opposition to its invocation. Dialogue as legislative response is dependent on the willingness of legislatures to enact response legislation while dialogue as judicial deference, perhaps the strongest basis on which to
differentiate the Charter from the paradigm of judicial supremacy, has little if any
basis in the text of the Charter. It relies on judicial convention, which, if it develops, is
sourced in systemic constitutional values about the role of courts in a democracy and
the respect judges give to legislative decisions regarding rights.
In Australia, given that no sanctions attach to non-compliance with a rights instrument (e.g. the executive’s failure to issue a statement of compatibility and the judiciary’s decision to issue a declaration of incompatibility attract no legal consequences),
it relies on the creation of, as a general matter, a culture of respect for rights and,
in each arm of government, a culture of respect for the rights determinations of the
other arms of government. Absent legal sanction, a political environment must exist
where each institution takes its obligations seriously. If courts never issue declarations
of incompatibility or legislatures routinely ignore them, the status quo ante prevails.
Successfully creating this culture is largely dependent on factors external to the rights
instrument. While the instruments encourage the formation of new practices and, in
turn, a rights-respecting culture, equally compelling factors may lead institutions to
resist change. Governments may not want to issue statements of compatibility because
they may provide political leverage to opposition parties. Or they may seek to control
parliamentary committees and prevent them from undertaking detailed scrutiny of
proposed laws to avoid political embarrassment. Or the success of the committee system may vary according to the issues at stake and the prevailing political climate—in
some circumstances, governments may welcome committee review; in others, they may
seek to shut it down. Courts may decline to issue declarations of incompatibility because
they deem them inconsistent with their core adjudicative function of resolving disputes
between parties. Australia’s reengineered idea of dialogue asks each arm of government
to change its attitude about its constitutional role to become more self-reflective, responsive and amenable to rights issues. This is a change rights instruments are incapable of
bringing about by themselves, especially as they do not have constitutional status. (They
are ordinary statues operating in a system with an entrenched, written constitution.)
Constitutional reengineering is, therefore, a powerful means by which actors redeploy ideas that have proven influential in other jurisdictions but also demonstrates the
potential perils for the comparativist and the limits imposed on the drafter.