I
am a long standing opponent of Bills of Rights, be they constitutionalised
or statutory. I have developed something of a sideline interest
and niche market writing about their sins, omissions, flaws, failings,
tendency to promote puffed-up, sanctimonious moralisers in the
judiciary and academia, and most tellingly their raw illegitimacy
in democratic terms.1
What
I have not done before is to write of their centralising, anti-federalist
tendencies. It is with much gratitude, therefore, that I thank
John Stone for having invited me to think about this topic and
to address you on it today.
My
initial inclination was to proceed straight to the issue of the
effects these instruments have on federalist constitutional arrangements.
Yet on second thoughts I have decided that would be a mistake.
To make the case for the centralising tendencies of a Bill of
Rights it is first necessary to be given a taste of how they work,
how they enumerate a set of moral abstractions that virtually
everyone supports, but that are so indeterminate their words resolve
nothing. Instead, the resolving of the myriad rights-based disputes
thrown up by Bills of Rights is handed over to the unelected judges,
to committees of ex-lawyers. Bills of Rights are sold up in the
Olympian heights of moral abstractions where there is near consensus.
(Who, for example, is against the right to free speech?). Yet
they have their real, practical effect down in the quagmire of
social policy line-drawing, and down here there is only ever disagreement
and dissensus---more exactly, there is disagreement between smart,
reasonable, well-meaning, even nice people who just happen to
disagree about where to draw lines when it comes to, say, immigration
procedures, or who can marry, or how best to strike the balance
between accused criminals and public safety, or even what sort
of campaign finance rules or hate speech provisions we might want.
(And notice that you can chant the mantra "right to free
speech, right to free speech, right to free speech" for as
long as you want, it will not help you answer these last two.)
Characterized
in that way, rather than in the moral certainties and disagreement
obfuscating abstractions of Bill of Rights proponents, and the
immediate question that arises is why such essentially moral and
political line-drawing should be translated into pseudo-legal
disputes and handed over to unelected judges, rather than treated
as political disputes and decided through the democratic process,
meaning by voting and letting the numbers count.
Consider
a sampling of what the judges of the Anglo-US world have done
with these Bill of Rights instruments. In Canada and the US, jurisdictions
with entrenched, constitutionalised models, the judges have decided
that free speech concerns trump health and safety concerns in
the context of tobacco and commercial advertising;2
they have foreclosed the prevention of abortion (in the US)3
or struck down, as procedurally flawed, the existing abortion
regulations leaving nothing in their place (in Canada);4
they have mandated that each and every refugee claimant be given
an oral hearing;5 they have created and imposed new
criminal procedure standards;6 they have twice over-ruled
the Canadian federal Parliament on whether convicted and incarcerated
prisoners must in all cases be allowed to vote;7 they
have even struck down (extrapolating from the Bill of Rights to
the preamble to the Constitution) legislation reducing the salaries
of provincial judges that was brought in as part of a general
province-wide reduction of public servants' pay.8
Meanwhile
in New Zealand and the United Kingdom, jurisdictions with statutory
Bills of Rights of the exact sort the State of Victoria proposes
to copy, the judges have done almost as much. True, with statutory
models the unelected judges cannot overtly strike down statutes
they feel infringe some enumerated right or other. However, they
can do what amounts to rewriting or redrafting such legislation---they
can go a long, long way towards reading 'black' to mean 'white',
provided they think this is more in keeping with what they
believe to be fundamental
human rights.
The
judges of the House of Lords in the United Kingdom have said that
they can use their new statutory Bill of Rights to let them depart
from the unambiguous meaning that a piece of legislation would
otherwise bear:
"Even if, construed according to the ordinary
principles of interpretation, the meaning of the legislation admits
of no doubt, [the Bill of Rights] may none the less require the
legislation to be given a different meaning... [It] may require
the court to... depart from the intention of the Parliament which
enacted the legislation. .... It is also apt to require the court
to read in words which change the meaning of the enacted legislation,
so as to make it [Bill of Rights] compliant".9
The
New Zealand judges have travelled almost as far. Only five years
ago three of seven judges on their highest domestic court were
prepared to say that because of New Zealand's statutory Bill of
Rights it was no longer the case that later statutes impliedly
prevail over earlier, inconsistent statutes.10 They
were of the view that they could use the Bill of Rights to prefer
the earlier statute if they thought it more in keeping with a
rights-respecting outcome.
Bills
of Rights then are powerful tools, whether of the constitutional
or statutory varieties. They are emotively attractive because
they are sold to the public up in the Olympian heights of moral
abstractions (such as "due process", "equality",
"no unreasonable searches", "freedom of religion",
etc). They hand a significant amount of power to the unelected,
unaccountable judiciary---power that can on occasion go to their
heads.11 And this inevitably means a politicization
of the judiciary, too. Why? Well, as judges become ever more powerful,
their decisions will more and more infringe on what were before
considered to be political line-drawing exercises. Relatedly,
the desire to appoint people of a like-minded political and moral
outlook will increase.
In
brief, then, Bills of Rights are sold on the basis that moral
answers are self-evident---that it is self-evident how a right
to free speech, say, should affect campaign finance rules or hate
speech enactments or defamation provisions. In actual fact, however,
virtually no Bill of Rights cases involve morally self-evident
outcomes---just trawl through all the Canadian Charter of Rights
cases of the last 24 years, or all of the New Zealand Bill
of Rights Act cases of the last
16 years. None involves moral blacks and whites and self-evidently
right outcomes and answers.
Worse
for proponents of these instruments, when judges disagree about
the scope or reach of rights or whether an enactment imposes a
reasonable limitation, the judges vote. Four votes beat three,
full stop. Under a Bill of Rights the authoritative decision-making
rule is not that the most references to Mill or
Milton or the International Covenant on Civil and Political
Rights prevails; it is a purely procedural rule.
The judges vote. A Bill of Rights merely affects the size of the
franchise (and, too, the accountability of those exercising power).
Bear
all that in mind now as we turn to the question of how a Bill
of Rights might affect federalism. In particular, bear in mind
the absolutist-sounding, universalist nature of rights guarantees,
because an immediate and initial question that arises is the extent
to which such guarantees can co-exist with the pluralistic, different-sizes-for-different-States
approach that underlies and justifies federalism.
Listen
to US Supreme Court Justice Antonin Scalia's defence of federalism:
"Now there are many reasons for having
a federal system, but surely the most important is that it produces
more citizens content with the laws under which they live. If,
for example, the question of permitting so-called 'sexually oriented
businesses'---porn shops---were put to a nationwide referendum,
the outcome might well be 51 per cent to 49 per cent, one way
or the other. If that result were imposed nationwide, nearly half
of the population would be living under a regime it disapproved.
But a huge proportion of the pro-sex-shop vote would be in states
such as New York, California, and Nevada; and a huge proportion
of the anti-sex-shop vote would be in the south, and in such western
states as Utah and New Mexico. If the question of permitting sexually
oriented businesses were left to the states---which is surely
where the First Amendment originally left it---perhaps as much
as 80 per cent of the population would be living under a regime
that it approved. Running a federal system is a lot of trouble;
a large proportion of the time of my Court is spent sorting out
federal-state relations. It is quite absurd to throw away the
principal benefit of that system by constitutionalizing, and hence
federalizing, all sorts of dispositions never addressed by the
text of the Constitution".12
When
Justice Scalia there talks of federalizing, he refers to the centralising
effect of court decisions made under the US Bill of Rights---decisions
that produce "one coast-to-coast disposition of such controversial
issues as pornography, abortion, homosexual rights, and (soon
to come) suicide".13
Our
task, in this paper, involves some speculation about Australia.
Were Australia to adopt a Bill of Rights, what would its effects
be in terms of producing uniformity, one-size-fits-all outcomes,
and coast-to-coast dispositions at the expense of diversity and
different-outcomes-for-different-States?
What
follows will be my conjectures as regards that question. However,
some caveats, provisos and stipulations are needed before this
can be done. Firstly, I will for the most part assume a Commonwealth
Bill of Rights is what we are considering. Of course I know---and
am delighted---that this awful possibility is not
in fact looming on the horizon or an immediate prospect. State
Bills of Rights are the real, actual threat at present (and I
will say a brief word or two about them at the end). Yet it is
a Commonwealth Bill of Rights that raises the preponderance of
federalist issues, so I will assume one of those for the purposes
of this paper.
Secondly,
and this needs to be made explicit, the centralising effects of
a Bill of Rights are hard to disentangle from division of powers
or division of legislative authority questions. In other words,
the Justices of the High Court already have scope and tools (whatever
one might think of the legitimacy of those tools) to weaken federalism
and to impose one-size-fits-all outcomes. Nor is it any revelation
to say that the States of Australia look to be pretty enfeebled,
enervated entities compared to their Canadian provincial cousins,
or even compared to the US States.
So
what follows is in that sense a relative claim---the effects of
a Bill of Rights here in Australia would be grafted on to the
existing reality as regards the relatively weak position of our
States. In addition, that reality needs also to acknowledge that
the Commonwealth can, and does, centralise things through its
preponderant control over taxation and the purse strings. Bluntly
put, it buys its way into matters affecting, say, health care
and education, and by that means exercises a fair degree of control
over matters that are State responsibilities.
Thirdly,
I will start by assuming an entrenched, constitutionalised, Canadian
or US-style model. I realise, of course, as we all do---including
those pushing for a Bill of Rights - that the requirement to win a s. 128
referendum before a constitutionalised model could come into existence
in Australia means that a statutory model is by far the more likely
possibility.14
Nevertheless,
this model has the most obvious centralising effects. So I will
start there. Later I will consider what a statutory version might
do.
All
those provisos and caveats need to be kept in mind as we turn
to speculate on where a Bill of Rights' centralising effects will
be most keenly felt.
Let
us begin our musings by setting out the four ways a Bill of Rights
might potentially affect a legal system once it comes into force.
The first way (and first, too, in terms of when it happens) has
to do with criminal procedure. A justiciable Bill of Rights inevitably
has some influence on how criminals are required to be investigated,
processed and tried---things such as how searches need to be executed,
or when access to a lawyer needs to be provided, or the prescribed
timing and sorts of trials, or whether reliable, incriminating
but arguably improperly obtained evidence is to be excluded.
The
second potential influence or effect is the birth of a Bill of
Rights cause of action sounding in money damages. In other words,
a Bill of Rights might lead to civil actions against government
and public bodies that garner successful plaintiffs money, sometimes
lots of money.15
A
third possible effect relates to the way in which statutes and
secondary legislation are interpreted. A Bill of Rights can give
rise to a new, less text-based or less plain meaning approach
to interpretation. The judges, relying on such a newly enacted
or adopted instrument, might prefer "Bill of Rights-friendly"
approaches (or more accurately put, their own contestable view
of what is a Bill of Rights-friendly approach) to what meaning
they give regulations, statutes, or even constitutional provisions.
The House of Lords case cited above makes this abundantly plain.16
This can be thought of as an "interpretation on steroids"
or Alice in Wonderland effect of Bills of Rights.
The
last potential effect is a version or offshoot of the third. Instead
of the Bill of Rights changing the way statutes (and secondary
legislation, and perhaps even constitutional provisions) are interpreted
and understood and have meaning imputed to them, the effect here
is to change how the common law is understood. The third effect
amounts to the redrafting of statutes; this one amounts to a re-writing
of the common law, of the rules built up over time from the case-by-case
adjudication of the judges.17
Those
are the four main ways that a Bill of Rights might potentially
affect a legal system, once one comes into force. As regards the
question of the centralising effects of these instruments, though,
it is the first and third of those ways that most obviously matter.
So
my prediction would be that the first centralising effects of
our mooted Bill of Rights would be felt in the realm of criminal
procedure and criminal law. As it happens, in this realm the different-sizes-for-different-States
outlook happens to be alive and well here in Australia. Three
of our States have Criminal Codes; three do not. Queensland's
Criminal Code was drafted by none
other than Sir Samuel Griffith; unlike Canada's Criminal Code and New Zealand's
Crimes Act, Griffith's Code was
in the comprehensive Macaulay and Bentham tradition, not the narrow
Stephen tradition. This is the Criminal Code more or less copied
by Western Australia. Tasmania, however, opted for the narrower
sort of codification that preserved the common law. And as I just
noted, the three other States have no Code at all.
But
let us focus on criminal procedure. All Bills of Rights these
days mention something like "the right to a fair trial"
and "the right to be secure against unreasonable searches",
to take just two examples. Put such absolutist sounding tools
in the hands of the judiciary, and what would happen to the present
differential requirements across the States vis-à-vis the
need for a unanimous jury verdict,18 or trial by jury
versus judge alone,19 or how juries are chosen,20
or legal aid entitlements,21 or when access to a lawyer
must be provided,22 or even the fate of myriad varying
reverse onus provisions? In the United States what has happened
is that:
"The Supreme Court has created what Congress
itself has no power to create: a highly detailed national Code
of Criminal Procedure. Nowadays it is a rare state prosecution
indeed that does not give rise to some arguable claim that this
national Code of Criminal Procedure has been violated".23
Or
let us speculate about other matters that would appear to fall
under the aegis of the criminal law. Abortion is a good example.
Start with an explicit right to due process, observe the creation
of a "right to privacy", then watch the judges infer
or imply from that a right to abortion (as happened in the US),
and all the differences between the Australian States as regards
the regulation of abortion would surely disappear.
Or
what about euthanasia? The Northern Territory's recent experiment
with a liberalized euthanasia regime was quashed by the Commonwealth.
Had it been a State experimenting with such a regime, though,
the Commonwealth could have done nothing---or at least nothing
other than threatening to hold back GST money or some such purse
string menace. Thrust a Bill of Rights into the equation, however,
one with "the right to life" as a central feature, and
we all know that such experimentation could be stopped in an instant
by the High Court judiciary. These judges might stop it, or they
might not. But the point is that it would be wholly up to them,
and nothing in the three words "right to life" would
constrain them either way. Their own moral sentiments would be
determinative. And whatever one thinks of such an ultimate decision-making
rule, it is not obviously best described in terms of federalism.
The judges' ruling would be a one-size-fits-all one.
The
same questions raised by euthanasia (and any more laissez-faire
attitude taken in future by one of the States) could (in theory)
be raised by suicide. Or, provoking at least as strong feelings,
there is prostitution, a close cousin of Justice Scalia's example
above of pornography. Post-Bill of Rights uniformity would seem
a strong likelihood vis-à-vis regulating prostitution.
Of
course, coast-to-coast standardization has frequently happened
in Australia already, without a Bill of Rights---think of blood
alcohol limits, say, or Justice Scalia's pornography example.
In fact, the latter (notwithstanding past efforts to produce uniformity)
is a good vehicle for sketching in more detail how Bills of Rights
act as centralising instruments.
Adopt
a Bill of Rights and there would certainly be included "the
right to free speech". Whatever the unelected judges decided,
as regards how that amorphously phrased, indeterminate right ought
to play out down in the quagmire of social policy-making line
drawing, its implications as regards pornography would inevitably
be coast-to-coast. If the fundamental human right to free expression
has implications X, Y and Z as regards the purveying of pornography
in New South Wales (or rather, the majority of top judges vote
amongst themselves that it is to have those implications), then
it can hardly be held to have different implications and ramifications
in South Australia, or Tasmania, or even (dare one suggest it)
Victoria. Turn an issue into one of transcendent and fundamental
human rights, and a one-size-fits-all outcome is carried in its
wake. The moral absolutism and self-assuredness (or less kindly
put, sanctimoniousness) of rights-talk and of framing issues in
terms of universal entitlements seem to me to be anathema to the
federalist, experiment-to-see-what-works-best mindset.
Consider
some more examples. Hate speech provisions (which presently differ
from State to State) would appear open to the same sort of "coast-to-coast"
treatment due to this right to free speech.
Then
again, we could leave behind the criminal law but stay with this
particular right. Imagine how a personal "right to free speech"
would affect campaign finance provisions. Let us assume that one
of the States wanted to experiment, and try to take some of the
money out of electioneering by enacting a statute that allocated
television broadcast time to the political parties based on some
combination of how they did at the last election and current polling,
while also forbidding the purchase of such broadcast time. How
would such an experiment fare? Could we see the six States each
opting for different campaign finance laws?
Here,
in fact, we do not need to make use of our imaginations. The first
of the so-called "implied rights" cases24
shows us what the centralising effects would be. Once the judges
create or invent "a freedom of communication concerning political
matters" (discerning it in some mystical fashion from the
text and structure of a Constitution whose authors explicitly,
deliberately and after much thought foreswore any personal right
to free speech), and this new entitlement, albeit a limited one,
must---and does---apply across the board. Whatever the States
might want, they are foreclosed from trying it. And that is the
centralising effect of an implied right, of a dwarf right, of
a non-personal right, of a bracketed and (for now) contained freedom
applying only against the legislature.
We
all know that the effect of an explicitly enumerated, personal
"right to free speech" would be greater still.
Allow
me to indulge myself with one last foray into speculation before
moving on. Consider the potential centralising effects here in
Australia as regards:
·
"The right to vote" and electorates or constituencies
that favour rural voters (because such constituencies contain
fewer voters than urban ones).
·
"The right to freedom of religion" (a beefed-up
s. 116, and one now applying to the States too) and the wearing
(or not wearing) of headscarves to schools.
·
"The right to freedom of religion" (again, a
beefed-up s. 116 applying to the States as well) and the funding
of parochial schools from the public (State) treasury.
·
"The right to vote" and rules regarding when
prisoners can (and cannot) vote.
In
all four of these examples, assume that one or more of the States
either already has laws to this effect or wants to bring them
in. Assume further that others of the States do not. My bet is
that the enumerated right would lead to a centralised, one-size-fits-all
outcome.
Over
time, we would be sure to see other centralising outcomes, though
some would be unexpected and others still unintended.
Return
to my third assumption, now, and put it away. No longer will we
imagine the effects of an entrenched, constitutionalised Bill
of Rights. Instead, consider what a statutory version enacted
by the Commonwealth Parliament might do.
Such
a version would be sure to have a reading down provision, a section
that tells the unelected judges to read all other statutes in
what they consider to be a Bill of Rights friendly
manner. The New Zealand version, section 6, reads:
"Whenever an enactment can be given
a meaning that is consistent
with the rights and freedoms contained in this Bill of Rights,
that meaning shall be preferred
to any other meaning". (my italics)
The
UK version, section 3 (1), reads to start:
"So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is compatible
with Convention rights". (my italics)
And
in the State of Victoria's Bill, sections 32(1) and (2) read:
"(1)
So far as it is possible to do so consistently with their purpose, all statutory
provisions must be interpreted
in a way that is compatible with human rights.
(2)
International law and the judgments of domestic, foreign
and international courts and tribunals relevant to a human right
may be considered in interpreting a
statutory provision". (my italics)
As
I indicated above, it is mainly these reading down provisions
that empower the judges to achieve most of what they could under
a constitutionalised Bill of Rights. Instead of striking down
statutes, they re-write them. And the evidence from New Zealand
and the UK makes plain that this is a possible---no, a probable---outcome.
(Victoria's added section 32(2) makes things even worse. This
certainty-destroying adornment is exceedingly likely to lead to
a ratchet-up effect, in my opinion.25)
In
terms solely of its centralising effects, the potency of any Commonwealth
statutory Bill of Rights would depend upon the extent to which
it could be used to read Commonwealth legislation more expansively.
There would be no question of striking down or rescinding State
legislation (as there would be with a constitutionalised instrument).
But where Commonwealth legislation is otherwise constitutional,
an expansively interpreted or re-written statute could have centralising
effects.
Moreover,
the very existence of such a statutory Bill of Rights will soon
be given---by the judges---a quasi-constitutional status. This
happened in New Zealand.26 It will happen here. And
that means it will affect how the judges read the Constitution
itself. Throw a statutory Bill of Rights into the equation, and
the debate in Al-Kateb27 over whether to interpret the Constitution in the light
of international human rights-based decisions---a debate Justice
Kirby lost resoundingly28 -
may come out the opposite way. In fact, I think it virtually certain
that it would.29 And once that happened, we would get
rights-based constitutional interpretation---or rather, the picking
and choosing and application of those overseas precedents felt
by the particular judge and his or her clerks to be sympathetic
and agreeable ones---through the backdoor.
It
is unclear which of my speculations above could be achieved only
with a statutory Bill of Rights. Here, I simply say, "more
than you would expect". Bills of Rights always surprise most
of their original drafters and proponents in terms of their potency
and ability to shift decision-making powers to the highest court.
And that generally entails, in a federal system such as Canada's
or the US's or Australia's, a degree of centralisation, of anti-federalism.
That
leaves just State Bills of Rights. They would appear, despite
their many other faults, to have no centralising effects. At any
rate, that is one's prima facie
impression. However, even that may be too optimistic, at least
in the following sense. Such a Bill of Rights will fall ultimately
to be interpreted by the High Court, by Commonwealth appointed
judges. So such State instruments will increase the power of centrally
appointed judges, which can be thought of as a sort of centralising
effect.
Worse,
were two or more States to enact Bills of Rights, we can be abundantly
confident that there would be considerable overlap as regards
content, as regards which rights are enumerated. Now these rights,
as I have already stressed, are articulated in broad, amorphous,
indeterminate terms. They constrain hardly at all where the many
highly debateable and disputed lines have to be drawn by the unelected
judges. It is almost never the case that sincere, reasonable,
smart, well-meaning people all agree about what some right demands
down in the quagmire of where Bills of Rights are litigated and
have real, actual effect. Accordingly, we would expect different
judges to draw the lines in different places. The most cursory
glance at the ramifications of, say, the right to free speech
and how it has played out in Canada, the US and New Zealand as
regards campaign finance laws, or hate speech provisions, or defamation
rules or anything else shows this to be true. The same goes for
other enumerated rights. The judges decide and no two jurisdictions
decide in precisely the same way.
The
irony of an Australian situation where there were multiple State
Bills of Rights is that the High Court would impose uniformity
and coast-to-coast dispositions. The Justices of the High Court
are extremely unlikely to allow the right to be secure against
unreasonable searches to mean one thing in Victoria and something
different in New South Wales. The same goes for the right to life,
or to freedom of religion or association. So in that sense, an
ironic one really, even various State Bills of Rights might engender
a sort of centralising effect.30
I
want to finish by considering whether the basic notion of parliamentary
sovereignty is compatible with federalism. This may appear to
be a question unrelated to whether Bills of Rights are, or are
not, centralising instruments. Yet I think that appearance is
mistaken. The motivating rationale and justification for parliamentary
sovereignty is that each generation should be left to decide fundamental
issues for itself---including issues about rights---by letting
the numbers count and majorities rule (rather than letting the
numbers count only on the High Court and resorting to majority
rules only there).
Parliamentary
sovereignty, understood in this way as being a system in which
the voters' elected representatives make all the fundamental decisions
for society (including moral decisions translated into the language
of rights), has only one plausible rival in today's world; it
is juristocracy, or kritarchy, or what you find when there exists
a justiciable Bill of Rights in place in a jurisdiction. Under
this rival system, a great number of moral and political line-drawing
decisions (after being suitably translated into the language of
rights) are handed over to unelected judges, to committees of
ex-lawyers. In its least aggressive embodiment, it still gives
the judges much more line-drawing power than they have under a
parliamentary sovereignty set-up.
To
assert, then, that parliamentary sovereignty is not compatible with federalism
is to imply that a Bill of Rights regime is compatible, or at least is more compatible, with federalism.
I
think that is wrong. Yes, in any federal system there will be
tensions between the two levels of elected legislatures---the
States and the Commonwealth. That in itself, however, does not
undermine the basic justification and reality of parliamentary
sovereignty, which is that the elected representatives (who are
accountable on a regular basis to the voters by means of elections)
make the fundamental line-drawing political and moral decisions
- that, in a rough sense,
the majority rules.
True,
federalism amounts to a bargain. It may be the price needed to
be paid to form a nation, or the most sensible way to deal with
vast geographical areas. Whatever the motivating causes, some
broad areas of responsibility will get allocated to the centre,
some (residually or explicitly) to the regions. Who is responsible
for what will sometimes be clear---will fall into "the core
of settled meaning".31 Sometimes, though, it will
be unclear---will fall into the "penumbra of doubt"32
or "of uncertainty".33 That is the very nature
of any rule; all rules are destined (in some circumstances) to
be under- or over-inclusive. Alas, it may even be true that sometimes
who is responsible for what in a federal system will appear clear
(on a plain meaning reading, say) to the vast preponderance of
interested people, and yet the point-of-application interpreters---the
top judges---will allocate the power contrary to that clear reading.
Federalism
necessarily carries with it division of powers disputes of the
second sort, those in which it is genuinely unclear which side
(regions or centre) is to have the power. No amount of specificity,
however fanatical, can prevent this in all situations. As I said,
it is the nature of rules. And so it is the nature of federalism
itself.
In
such circumstances someone has to decide, and I see nothing wrong
with it being the top judges. If not them, then who? And this
remains true even though all of us might suspect that judges appointed
by the centre will (on average, over time, in the really important
cases) tend to favour the side that appointed them.
That
seems to me to be part of the federalist bargain. But nothing
in that bargain undermines parliamentary sovereignty. Judges here
are acting as umpires. One of the two levels of elected government,
of the sovereign Parliaments, will get to draw the lines. The
unelected judges are merely deciding which it will be.
How
is that incompatible with parliamentary sovereignty? It is only
when one imagines judicial manipulations---handing the power to
the side more likely to reach decisions the unelected judges themselves
favour---that parliamentary sovereignty begins to be undermined.
One such manipulation is of the sort I mooted above, where the
judges allocate the division of powers contrary to what appears
to be the clear reading or plain meaning (or, in their absence,
arguably the manifest intent of the founders). This, though, is
not a sin to be laid at the feet of the elected branches.
There
is a price to be paid by parliamentary sovereignty when it makes
the bargain for federalism. Yet that price is a very small one
indeed in so far as taking power out of the hands of elected representatives
of the people (of one level or the other) is concerned.
The
point to make here, though, is that the price of the bargain will
not go down, but will only go up, when judges are given greater
powers (as they are when a justiciable Bill of Rights is entrenched
or enacted). Federalism will be and is enervated far more than
when no such instrument is in play.
In
that sense, I would say that parliamentary sovereignty is more
compatible with federalism than is any sort of Bill of Rights
regime. Under the former, it is considerably easier to opt for
and keep in place differential State-by-State outcomes than under
the latter, where issues get characterised in terms of amorphous,
indeterminate but nevertheless timeless moral truths. And, of
course, that is just another way of making my main point in this
paper---that Bills of Rights are centralising instruments.
1.
See, for instance, my Bills of Rights and Judicial Power---A
Liberal's Quandary? (1996), 16 Oxford
Journal of Legal Studies
337; Sympathy and Antipathy
(Aldershot: Ashgate, 2002); Rights, Paternalism, Constitutions and Judges, in G Huscroft and
P Rishworth (eds), Litigating Rights: Perspectives from Domestic
and International Law (Oxford: Hart Publishing,
2002); Paying for the Comfort of Dogma (2003), 25 Sydney Law Review 63; A Modest Proposal (2003), 23 Oxford Journal of Legal
Studies 197; Portia, Bassanio
or Dick the Butcher? Constraining Judges in the Twenty-First Century (2006), King's
College Law Journal
(forthcoming, April issue); and Thin Beats Fat Yet Again---Conceptions
of Democracy
(2006), Law & Philosophy
(forthcoming).
2.
See RJR MacDonald Inc v. Canada (1995) 127 DLR (4th) 1.
3.
See Roe v. Wade
410 US 113.
4.
R v. Morgentaler
[1988] 1 SCR 30.
5.
See Singh v. Canada (Minister of Employment and Immigration) [1985] 1 SCR 177.
6.
See Miranda v. Arizona
384 US 436 (1966).
7.
See Sauve v. Canada (Attorney General) [1993] 2 SCR 438 and Sauve v. Canada (Chief
Electoral Officer)
[2002] 3 SCR 519.
8.
See Reference Re Remuneration of Provincial Court Judges [1997] 3 SCR 3.
9.
Ghaidan v. Godin-Mendoza
[2004] 3 All ER 411, paragraphs [29], [30] and [32] per Lord Nicholls
of Birkenhead. All their Lordships expressed broadly similar sentiments
in that case.
10.
See R v. Pora
[2001] 2 NZLR 37. Three others on the court disagreed. The seventh
judge decided the case on other grounds.
11.
In the second Sauve
case referred to above, the Chief Justice of Canada referred obliquely
to countries that disagree with her court's 5-4 ruling, including
Australia, the UK, the US and New Zealand, as "self-proclaimed
democracies". (Paragraph [41]). It is impossible to exaggerate
the moral self-assuredness, nay sanctimoniousness, of such a remark.
And in the course of an official judgment too!
12.
Justice Antonin Scalia, Romancing the Constitution:
Interpretation as Invention, in (eds) G Huscroft
and I Brodie, Constitutionalism in the Charter Era
(Lexis Nexis, 2004), p. 337 at p. 342.
13.
Ibid..
14.
And isn't it ironic that the same people who push for a
catalogue of rights, including the right to vote and "to
participate in the conduct of public affairs" (s. 18 (1)
of the draft Victorian Charter of Human Rights), these days avoid
referenda? My view is that they do so because they know they will
lose.
15.
In New Zealand, with a statutory Bill of Rights, and despite
the remedies provision having had to be removed to get the Bill
enacted, the judges simply read back in such a remedy; they created
a public law remedy sounding in the new Bill of Rights. See Simpson
v. Attorney-General [Baigent's Case] [1994] 3 NZLR 667,
and my Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990 (2000), 9 Otago
Law Review
613.
16.
See the main text to Ghaidan v. Godin-Mendoza, supra. For a New Zealand
example, consider Moonen v. Film & Literature Board of
Review [2000] 2 NZLR 9 (CA),
in particular from p. 16:
"Of necessity value judgments will be involved .....
[these will be] a matter of judgment which the Court is obliged
to make on behalf of the society which it serves and after considering
all the issues which may have a bearing on the individual case,
whether they be social, legal, moral, economic, administrative,
ethical or otherwise".
Some readers might be surprised to find ex-lawyers
claiming competence in many of these areas.
17.
Hence, a Bill of Rights is relied upon in order to change
(or if you prefer, "to develop" or "to update"),
say, the law of defamation. See Lange v. Atkinson & Consolidated
Press Ltd 3 NZLR 424. See too Lange v. Australian
Broadcasting Corporation
(1997) 189 CLR 520 for something similar using "implied rights".
18.
See, for example, RG Kenny, An Introduction to Criminal
Law in Queensland and Western Australia
(Butterworths, 2004), ch. 5.81.
19.
Ibid., chs. 4.13, 4.24,
5.76 and 5.77.
20.
Ibid., ch. 5.79.
21.
Ibid., ch. 4.35 and 4.36,
and Managing Justice: A Review of the Federal Civil Justice
System, Australian Law Reform
Commission (2000), in particular ch. 5 and 5.62.
22.
Consider the State policy guidelines and practices developed
in response to the High Court's Dietrich v. R. (1992) 177 CLR 222. Admittedly, the variations are not
pronounced here.
23.
Justice Antonin Scalia, Romancing the Constitution:
Interpretation as Invention, op. cit., p. 341.
24.
See Australian Capital Television v. Commonwealth (1992) 177 CLR 106.
See too my Paying for the Comfort of Dogma (2003) 25 Sydney Law Review 63.
25.
For a fuller argument to this effect see my and Grant Huscroft's
Constitutional Rights Coming Home to Roost? Rights Internationalism
in American Courts (2006) San Diego
Law Review (forthcoming, March
issue).
26.
See my Turning Clark Kent into Superman, loc. cit., pp. 617 ff.
27.
See Al-Kateb v. Goodwin (2004) 208 ALR 124.
28.
See my 'Do the Right Thing' Judging? The High Court
of Australia in Al-Kateb (2005) 24 University
of Queensland Law Journal, No. 1, 1-34.
29.
Consider the clear implications of Justice McHugh's comments
in Al-Kateb (loc. cit., paragraphs [73]---[74])
re Bills of Rights.
30.
Note that this does not happen in the United States---or
at least not easily---because there the interpretation of State
Constitutions, just as with the interpretation of State common
law, is not a matter for the US
Supreme Court (making it different from Australia and Canada in
that regard). That said, if the US judges are prepared to point
to a Bill of Rights provision, this can be got round. So in NY
Times v. Sullivan 376 US 254 (1964), for example, the US Supreme
Court made the defamation law of Alabama a federal matter.
31.
See HLA Hart, The Concept of Law (OUP, 1961), p. 140, inter alia.
32.
Ibid., p. 119, inter
alia.
33.
Ibid., p. 131, inter
alia.