A Minimalist Charter of Rights for Australia: The UK or Canada as a Model?

Date01 September 2009
Published date01 September 2009
Rosalind Dixon*
Minimalist: Involving minimum change or intervention
— Oxford English Dictionary
Most commentators agree that, if Australia is to adopt a charter of rights, such a
charter should so far as possible involve a 'minimalist' form of constitutional change.1
It should both be enacted by ordinary statute and seek to preserve broad scope for the
Commonwealth Parliament, in appropriate cases, to override the interpretation of non-
Constitutional rights by the High Court. When it comes to questions of form and
enforceability, the thinking is that it should be modelled on either the Human Rights
Act 1998 (UK) c 42 ('UK HRA '), and the largely equivalent state statutory charters in
the ACT and Victoria,2 or on the Canadian Bill of Rights, SC 1960, c 44 ('CBOR').
* Assistant Professor of Law, University of Chicago Law School. The author wishes to thank
Peter Cane, Harry Dixon, Marion Dixon, Carolyn Evans, Richard Holden, Andrew Lynch,
Ed Santow, Cheryl Saunders and Adrienne Stone for helpful comments and suggestions on
earlier drafts of this article, and the issues raised by it. Thanks are also due to Jennifer
Dougherty and Emily Tancer for excellent research assistance.
1 For the idea of minimalism in constitutional law, particularly as applied to the process of
judicial review, see Cass R Sunstein, One Case At A Time: Judicial Minimalism on the Supreme
Court (1999).
2 See Human Rights Act 2004 (ACT) ('ACT HRA'); Victorian Charter of Rights and
Responsibilities 2006 (Vic) ('Victorian Charter'). For relevant differences, see, eg, Carolyn
Evans, 'British Influences on Australian Human Rights Acts' (Paper presented at the
Faculty of Law, Oxford University, 24 April 2007); Simon Evans, 'The Victorian Charter of
Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their
Implications for Victoria,' Paper presented at the Australian Bills of Rights: The ACT and
Beyond Conference, Canberra, 21 June 2006. In many ways, the Bill of Rights 1990 (NZ) is
also another model in this same broad category, but as a potential precedent raises certain
additional complications. One complication is that it contains no express power to make a
declaration of incompatibility or inconsistency, and therefore to the extent such a power is
judged desirable even on minimalist grounds, raises unnecessary complications. Another
difficulty is that it has been interpreted by the New Zealand Court of Appeal to imply
certain fairly maximalist remedies, including a right to damages for the breach of the Act:
see, eg, Simpson v A-G [1994] 3 NZLR 667 ('Baigent's Case'). For some, this raises concerns
about the stability of weak-form judicial review: see, eg, James Allan, 'Take Heed Australia
— A Statutory Bill of Rights and Its Inflationary Effect'(2001) 6 Deakin Law Review 322, 333
(discussing the emotive power of 'rights talk' referencing a bill of rights); Grant Huscroft,
336 Federal Law Review Volume 37
Not only would a statutory charter of this kind be easier to adopt than a more
entrenched model of charter, such as a charter modelled on the US Bill of Rights, the
Canadian Charter of Rights and Freedoms 1982 (the second and later of Canada's two
operative human rights charters) ('Canadian Charter'), or Constitution of the Republic of
South Africa 1996. By formally preserving broad scope for Parliament to override a
decision of the High Court in respect of rights, it would also, proponents argue, be
more respectful of existing democratic commitments than a US-style rights charter.3
As between the two different statutory charter models provided by the UK HRA
and CBOR, when it comes to the question of judicial enforcement, most charter
commentators further suggest that the British model is the more minimalist of the two. 4
By purporting to limit the power of courts to declare legislation invalid for
inconsistency with a rights charter, or adopting a system of 'weak remedies,'5 the
British model not only gives Parliament formal power to amend or expressly to
suspend rights as they have been interpreted by the Court, but also the formal power
to decline to respond to a declaration of incompatibility by the Court. It is therefore
even closer, so the argument goes, to Australia's current system of human rights
protection.6 Partly for this reason, it is also now the model endorsed by National
'Protecting Rights and Parliamentary Sovereignty: New Zealand's Experience with a
Charter Inspired, Statutory Bill of Rights' (2002) 21 Windsor Yearbook of Access to Justice 111,
129 (arguing that increased rights-consciousness produces a strong gravitational pull away
from weak-form judicial review); Mark Tushnet, 'Judicial Activism or Restraint in a Section
33 World' (2003) 53 University of Toronto Law Journal 89, 89–90. However, it may also reflect
more specific problems associated with the design of the NZBOR, and the approach of
some members of the New Zealand Court of Appeal in the early years of the operation of
the NZBOR: see, eg, Andrew S Butler, 'Declaration of Incompatibility or Interpretation
Consistent with Human Rights in New Zealand' (2001) Public Law 28 (on design); Anna
Adams, 'Competing Conceptions of the Constitution: The New Zealand Bill of Rights Act
1990 and the Cooke Court of Appeal' (1996) New Zealand Law Review 368 (summarizing the
approach of Lord Cooke and other members of the Cooke court to the NZBOR).
3 It should, of course, be noted that the degree to which the US leaves scope for democratic
dialogue between the Supreme Court and the elected branches, either via United States
Constitution art V, § 5 of the Fourteenth Amendment or otherwise, is itself a contested
4 When it comes to the substantive rights the two charters protect, the CBOR is generally
agreed to be much narrower and to that extent more minimalist — but potentially too
much so. See Walter S Tarnopolsky, 'The Historical and Constitutional Context of the
Proposed Canadian Charter of Rights and Freedoms' (1981) 44(3) Law and Contemporary
Problems 169. See also Part III below.
5 On the distinction between strong — versus weak-forms of review, see Mark Tushnet,
Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative
Constitutional Law (2008).
6 See, eg, Hilary Charlesworth, 'Who Wins under a Bill of Rights?' (2006) 25 University of
Queensland Law Journal 39, 50 (arguing that, whatever the merits of democratic concerns
about judicial review in the name of human rights, such concerns are directly answered by
such a power); Geoffery Robertson, The Statute of Liberty: How Australians Can Take Back
their Rights (2009) 47-48 (arguing for such a model as representing a true 'half-way' house
model); George Williams, 'The Victorian Charter of Human Rights and Responsibilities:
Origins and Scope' (2006) 30 Melbourne University Law Review 880.

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