Rights, ‘Dialogue’ and Democratic Objections to Judicial Review
| Date | 01 March 2004 |
| Published date | 01 March 2004 |
| DOI | 10.22145/flr.32.1.1 |
| Subject Matter | Article |
RIGHTS, 'DIALOGUE' AND DEMOCRATIC OBJECTIONS TO
JUDICIAL REVIEW
Leighton McDonald*
1 INTRODUCTION
Since its inception the Canadian Charter of Rights and Freedoms1 has been criticised as
undemocratic. It gave a small coterie of politically unaccountable judges the power to
override the policy preferences of the people's representatives. What's more, the
justification for this rested on the vagaries of rights, about which even the converted
cannot reach agreement. Granted: parliamentary politics are not perfect. But, as John
Ely famously argued, 'we may grant until we're blue in the face that legislatures aren't
wholly democratic, but that isn't going to make courts more democratic than
legislatures.'2
Peter Hogg and Allison Bushell have recently responded that this majoritarian
objection to judicial review has been exaggerated — at least in the context of Canadian
democracy.3 They claim that an empirical study of Charter cases and their legislative
sequels falsifies the belief that the Supreme Court inevitably has the last word on
rights. Judicial review is not a veto over politics but the beginning of a 'dialogue' about
rights between courts and legislatures. The actual effect of the Charter is rarely to block
legislative policies since 'decisions of the Court almost always leave room for a
legislative response' and usually get one.4
Hogg and Bushell's response to Ely might thus go something like this: 'we can grant
until we're blue in the face that courts aren't as democratic as legislatures, but that
doesn't change the fact that Charter review rarely prevents a competent legislature
from accomplishing its original objectives'. After protracted debates over the constant
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* Faculty of Law, The Australian National University. An earlier version of this article was
delivered in the Bill of Rights Seminar Series, Centre for International and Public Law,
ANU, on 27 November 2002. Thanks to Peter Cane, John Gava, Jeffrey Goldsworthy, Sarah
Harding, Rosemary Owens, Adrienne Stone, John Williams, David Wiseman, and Leslie
Zines for helpful discussions and comments, and to John Howell and Tanya Spisbah for
their excellent research assistance.
1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B
to the Canada Act 1982 (UK) c 11 ('Charter').
2 John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) 67.
3 Peter Hogg and Allison Bushell, 'The Charter Dialogue Between Courts and Legislatures
(Or Perhaps the Charter of Rights Isn't Such a Bad Thing After All)' (1997) 35 Osgoode Hall
Law Journal 75.
4 Ibid 105.
2 Federal Law Review Volume 32
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supply of new theories purporting to reconcile judicial review with a particular
philosophical conception of democracy or political legitimacy, Hogg and Bushell's
argument is notable for its theoretical modesty. It simply insists that, even if
democracy is just about the enactments of legislative majorities, we need to
acknowledge that legislative objectives are rarely thwarted by court decisions about
Charter rights.
One interesting question raised by Hogg and Bushell's study, which has been much
discussed in Canada,5 is the extent to which it has relevance beyond the particularities
of the Charter's structure and text, and specific features of Canadian history, politics
and institutions. Does the analysis contain general insights about the democratic
credentials of rights-based judicial review?6 This article seeks to shed some light on
that question by asking a more specific one: does Hogg and Bushell's argument have
any lessons to contribute to ongoing debates about rights-based judicial review in the
Australian constitutional context?
After explaining Hogg and Bushell's account of 'dialogue' in more detail (Part 2), I
examine, in Part 3, whether judicial review of the limited rights and freedoms currently
contained in the Australian Constitution might be usefully analysed along similar
dialogic lines. While there are reasons for concluding that the metaphor of 'dialogue'
has considerably less resonance in Australia than in Canada, the idea nonetheless can
be invoked to challenge the straightforward sense in which the High Court of
Australia's word is sometimes taken to be final. In particular, I will suggest that critics
of the High Court's controversial implied rights jurisprudence are apt to consider its
democratic costs higher than in truth they are.
Part 4 of the article considers whether the possibility that a Canadian style
'dialogue' might be generated in other jurisdictions should moderate the strong
democratic objections raised in Australia to the (re)current proposals for the
introduction of a bill of rights. This discussion essentially raises two issues: (1) the
extent to which 'dialogue' (of the sort described by Hogg and Bushell) can overcome
democratic objections to judicial review, and (2) whether, in any event, the institutional
interaction between courts and legislatures in Australia would be likely to take a
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5 In Vriend v Alberta [1998] 1 SCR 493, 565–6 Cory and Iacobucci JJ referred to Hogg and
Bushell's metaphor of 'dialogue' as 'aptly' describing the interaction between legislatures
and courts, and argued that it enhanced the democratic process. For a sampling of the
growing academic literature, see Kent Roach, 'Constitutional and Common Law Dialogues
Between the Supreme Court and Canadian Legislatures' (2001) 80 Canadian Bar Review 481;
Kent Roach, 'Remedial Consensus and Dialogue Under the Charter: General Declarations
and Delayed Declarations of Invalidity' (2002) 35 University of British Columbia Law Review
211; Patrick Monahan, 'The Supreme Court of Canada in the 21st Century' (2001) 80
Canadian Bar Review 374; Christopher Manfredi and James Kelly, 'Six Degrees of Dialogue:
A Response to Hogg and Bushell' (1999) 37 Osgoode Hall Law Journal 513; Jamie Cameron,
'Dialogue and Hierarchy in Charter Interpretation: A Comment on R v Mills' (2001) 38
Alberta Law Review 1051; F L Morton, 'Dialogue or Monologue?' (April 1999) Policy Options
23, available from the Institute for Research on Public Policy,
<http://www.irpp.org/po/index.htm> at 25 March 2004.
6 For the purposes of this article, 'rights-based judicial review' refers to the invalidation of
legislation on the basis that it is inconsistent with guarantees of rights contained in a
constitution. Cf Martin Shapiro, 'The European Court of Justice' in Paul Craig and Gráinne
de Búrca (eds), The Evolution of EU Law (1999) 321.
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