Rights Protection without Judicial Supremacy: A Review of the Canadian and British Models of Bills of Rights
Debeljak, Julie, Melbourne University Law Review
[Since the enactment of the Human Rights Act 1998 (UK) c 42, Australia is the only common law jurisdiction without a comprehensive system of legislative or constitutional protection of human rights and fundamental freedoms. As a result, Australia is at risk of legal and philosophical isolation. A reassessment of Australia's stance on human rights protection is necessary. This reassessment must include a new examination of the link between democracy and human rights. This article focuses on institutional models of human rights promotion and protection that are consistent with Australia's democratic tradition. It explores modern notions of democracy, and the balance of power between the institutions of government under modern bills of rights. Particular features of modern bills of rights, which institutionalise the debate about human rights between the three arms of government, are discussed The discussion proceeds in the context of two modern rights protective instruments: the Canadian Charter of Rights and Freedoms and the British Human Rights Act 1998 (UK) c 42. This comparative study aims to be instructive for Australia, particularly as the question of the means of enforcement of a bill of rights has historically been an impediment to the adoption of an Australian Bill of Rights.]
Australia does not have a comprehensive system of legislative or constitutional protection of human rights or fundamental freedoms. As Charlesworth has noted, the `Australian discussion about rights seems locked into a repetitive debate about the legitimacy of judicial scrutiny of governmental action.' (1) It is often asserted that democracy requires parliamentary sovereignty. If the judiciary were empowered to review legislative and executive actions under a comprehensive rights protection instrument, as the argument goes, we would have a system of judicial sovereignty. (2) The judiciary is not elected and so judicial sovereignty is undemocratic. Thus, to preserve this democracy, our elected arms of government retain a monopoly over the scope of the protection of human rights.
This simplistic view of democracy as requiring unfettered parliamentary sovereignty cannot be sustained. Modern models of rights protection give the judiciary some capacity to review the decisions of the elected arms of government against minimum human rights standards. Breaking the parliamentary monopoly on rights protection has not undermined democracy. Rather, self-role and political equality are enhanced by an inter-institutional debate about democracy and its limits. The essence of enhanced control by citizens over decisions that affect them is self-role. The crux of overcoming disparities in rights and opportunities is concerned with political equality. This is a debate in which the perspectives of each institution are recognised as valid and constructive.
This article briefly describes the current parliamentary monopoly over rights in Australia. It then explores the potential congruence between democracy and human rights, adopting the principle of `democratic inclusion' as its foundation. The principle of democratic inclusion promotes improved notions of self-rule conditioned by political equality. The judiciary has a legitimate role to play in securing self-rule and political equality, but this should not be to the exclusion of the representative arms of government. The modern rights protection instruments in Canada and Britain, (3) which recognise the need for an inter-institutional debate about democracy and rights, are then assessed against the elements of the principle of democratic inclusion. The article concludes by criticising all governmental monopolies over the democracy and rights debate (whether they be representative or unrepresentative). In a dynamic, pluralistic society, a continuing debate about the directions of society, informed by legislative, executive and judicial perspectives, is the way forward. …