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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 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 similar shape to the purported 'dialogue' in Canada. I argue that, to the extent Hogg and Bushell maintain that democratic objections to Charter review cannot be sustained,[7]their conclusions overreach their analysis. Indeed, I suggest that the metaphor of 'dialogue' is potentially misleading and that the phenomenon under description might be better described as 'institutional interaction'. Once the 'dialogue' between courts and legislatures is so understood, the nature and limits of the lessons of Hogg and Bushell's analysis become clearer. It also becomes clear that whether or not the patterns of institutional interactions in Canada would be replicated in other jurisdictions and, in particular, Australia is a complex question about which doubts can be raised.
For Hogg and Bushell, courts and legislatures enter into a relationship of dialogue whenever 'a judicial decision is open to legislative reversal, modification, or avoidance' by the ordinary legislative process.[8]In these circumstances the 'legislative body is in a position to devise a response that is properly respectful of the Charter values that have been identified by the Court, [and to accomplish] the social or economic objectives that the judicial decision has impeded.'[9]The paradigm case of 'dialogue', then, is where, following a court ruling, a legislature changes the means for achieving their objectives in ways more attentive to Charter rights but still substantially accomplishes the legislature's original objectives. Canada's claimed Charter 'dialogue' thus appears to be an observable practice of routine interaction where the pursuit of legislative objectives is assumed to be constructively modified (from a rights perspective), but not impeded, by judicial input into the law-making process. Although Hogg and Bushell clearly acknowledge that judicial review continues to constrain the democratic process, they insist that the 'final decision [of the legislature] is the democratic one.'[10]According to them it is 'rare indeed that the constitutional defect cannot be remedied'[11]in a way which substantially accomplishes the legislature's original objectives.
In Canada, this so-called 'dialogue' is facilitated by a number of features of the Charter. Most obviously, s 33 gives the legislature power to override many Charter rights.[12]However, although s 33 gives legislatures an explicit power to reverse judicial decisions, Hogg and Bushell emphasise the 'development of a political climate of resistance to its use.'[13]The observed 'dialogue' in Canada has thus been substantially achieved through less explicit means of overcoming judicial interpretations of Charter rights.
The facilitation of dialogue has principally been achieved through operation of s 1 of the Charter, which subjects rights to reasonable limits capable of justification in a 'free and democratic society.'[14] The Supreme Court of Canada has held that laws will be justified under s 1 where they pursue an important objective, are rationally connected with that objective, impair Charter rights no more than necessary, and do not have a disproportionately severe effect on the persons to whom they apply.[15]As Hogg and Bushell indicate, most of the work in this justificatory test is done by the least restrictive means requirement of the proportionality analysis.[16]Most legislation is invalidated because there are thought to be less restrictive means available; because the legislature is thought to be swinging a sledge hammer to crack a nut. Further, as the process of giving reasons for concluding a law is not justified under s 1 will often give clues or even specific alternative suggestions as to permissible legislative formulations for achieving its goals, Hogg and Bushell conclude that 'one can usually be confident that a carefully drafted "second attempt" will be upheld against any future Charter challenges.'[17]That is to say, in highlighting exactly why the chosen means are not the least restrictive means, the Court will often, to explain its reasons, be required to imagine less invasive means which would be more likely to pass constitutional muster. While the democratic process is indubitably influenced, Hogg and Bushell argue that it is not thereby 'stultified.'[18]
Finally, Hogg and Bushell explore the idea that even when laws are not justified under s 1 the Supreme Court will often leave considerable latitude open to the legislature at the remedial stage, particularly in relation to remedying breaches of the s 15 guarantee of equality.[19] For example in Eldridge v British Columbia (Attorney-General)[20] the Supreme Court of Canada held that, although British Columbia's failure to provide adequate translation services to deaf people violated equality rights, the remedy should acknowledge that 'there are myriad options available to the government that may rectify the unconstitutionality of the current system.'[21]As David Wiseman explains, '[t]he Supreme Court in Eldridge thus took responsibility for establishing the result to be achieved but was also prepared to defer to the government's greater capacity and legitimacy to determine the means of achievement.'[22]Hogg and Bushell's discussion focuses on the legislature's ability to remedy an invalidated under-inclusive law by either extending the benefit to the excluded group or eliminating the benefit outright. Their claim is that 'democratically elected bodies are still ultimately responsible for setting their own budgetary priorities, albeit in a way that does not discriminate against disadvantaged groups.'[23]The general point is this: even court declarations of invalidity are often premised on the possibility or need for further legislative activity; the image of courts as simplistically usurping the role of the legislature is thus revealed as a distortion.
It should be emphasised that Hogg and Bushell are careful to admit that 'there may be some circumstances where the court will, by necessity, have the last word.'[24] The most important such instance is where the court comes to the conclusion that it is not the means a law adopts to achieve an objective which is problematic, but rather the law's objective itself. Dialogue depends, that is, on the legislature's policy objectives not themselves being unconstitutional. However, the extent of this problem for the notion of 'dialogue' is easily overstated. Not only is it true that courts rarely conclude that the legislature's purpose is not 'pressing and substantial', it is also the case that it remains open to the legislature to reformulate the objective of laws which may initially seem to directly restrict a Charter right.[25]But in those cases where the s 33 legislative override is unavailable, if the Court characterises a law's purpose as constitutionally impermissible, and the law cannot be given a plausible alternative objective, it thereby gives itself the last word.[26]
With respect to the findings concerning legislative sequels, Hogg and Bushell found that in eighty per cent of cases surveyed 'legislative action of some kind' followed laws that had been struck down on Charter grounds.[27]To be sure, seven of those cases involved the legislature simply repealing the offending provision, and in a 'few' instances 'the remedial legislation merely implemented the changes the reviewing court had suggested.'[28]Nonetheless, Hogg and Bushell conclude that even if one excluded from the notion of dialogue those cases where a legislature seemingly reached agreement with judicial interpretations 'there would still be a significant majority of cases in which the competent legislative body has responded to a Charter decision by changing the outcome in a substantive way'[29]and that 'in most cases, relatively minor amendments were all that was required in order to respect the Charter, without compromising the objective of the original legislation.'[30]Thus, their conclusion is that even on a restrictive definition of 'dialogue' the phenomenon is 'quite prevalent'.[31]As such they boldly conclude that 'the critique of the Charter based on democratic legitimacy cannot be sustained';[32]Alexander Bickel's 'counter-majoritarian difficulty',[33] an academic obsession in the United States,34 should not, therefore,continue to vex Canadian legal scholars.
Can a similar 'dialogic' story be told about judicial review in Australia undertaken on the basis of the limited express and implied rights under the Australian Constitution? Before more directly approaching this question it is helpful to describe briefly the uneventful history of the counter-majoritarian difficulty in Australia.
A The counter-majoritarian difficulty in Australia
In sharp contrast to constitutional scholarship in the United States, Australian constitutionalists have been largely untroubled by the counter-majoritarian difficulty. This is not because the High Court has refused to invalidate democratically enacted legislation; judicial review has always been regarded as 'axiomatic'.[35]The reason is that, despite the existence of some limited rights provisions in the Australian Constitution,[36]judicial review has focused on the High Court's role as the 'keystone of the federal arch'.[37]The general thinking has been that, unlike rights-based judicial review, judicial enforcement of the 'federal balance' is not directly about whether or not there are limits upon what the majority might do, but rather about which majority has power over a particular subject matter.
This is not to imply that judicial review, both in particular instances and as an institution, has been uncontroversial. Indeed, for some time Sir Owen Dixon's declaration, on being sworn in as Chief Justice, that the High Court was to be guided by nothing other than 'strict and complete legalism'[38]has been subjected to increasing scrutiny and scepticism.[39]More recently, growing concerns about the legitimacy of judicial review have been exacerbated by the High Court's explorations into implied constitutional restraints on legislative power. Thus, when legislation is overturned on the basis of so-called implied rights (most notably the implied right to freedom of political communication), the critics directly echo Bickel. Rights-based judicial review [40]transfers power from the legislature to a counter-majoritarian institution.[41]Indeed in Australia the critics go further: not only is this new rights-based review counter- majoritarian, but the constitutional rights have been smuggled in the back door by the judges themselves, avoiding the s 128 referendum process for formally amending the Australian Constitution.[42]This, then, is doubly counter-majoritarian. To the extent some implied rights are now firmly part of Australian constitutional doctrine, the legitimacy of rights-based review is an important, if not preoccupying, question of Australian constitutional theory.
Can we, then, find traces of 'dialogue' in Australia's experience of rights-based judicial review?[43]The idea that judicial review based on the limited constitutional rights in Australia can be understood as initiating a dialogue between the judiciary and the legislature is, it must be said, an unlikely one. Very few rights-based arguments, even accounting for the limited express constitutional rights, have led to the invalidation of legislation.[44]And for all the academic and judicial controversy over the legitimacy of implied rights, surprisingly few findings of invalidity have been forthcoming. Indeed, some of the implied rights cases exciting the most controversy have not resulted in legislative invalidity.[45]
It is also of significance that, in the absence of an express bill of rights, any attempt to study cases where legislation has been struck down due to 'rights-based' legislative disabilities is complicated by difficulties concerning what exactly constitutes a 'rights' case. So while decisions invalidating legislation on the basis of the separation of judicial power can be conceptualised as some sort of individual right to 'due process',[46]the jurisprudence of the High Court sometimes has a more metaphysical bent being preoccupied by the nature of judicial power or the essence of judicial process.[47]Such an approach does not always bring the associated human rights concerns to the surface. In particular, the recognition that the interests justifying rights are not absolute and the concomitant legitimacy of asking whether a burden on those interests is justifiable — a recognition characteristic of comparative and international human rights law — is not a prominent feature of 'judicial power' jurisprudence. The characterisation of such cases as rights-based is thus a contestable one.[48]Moreover, given that the sort of dialogue envisaged by Hogg and Bushell paradigmatically works through the s 1 examination of the necessity and severity of burdens on Charter rights, the absence of a similarly structured doctrine in the 'due process' cases at least makes it less likely an analogous phenomenon might be present.
This is not to say that examples of arguable 'dialogue' cannot be found. There are instances where it might be argued that the legislature has, in response to a finding of invalidity, engaged in 'dialogue'. There are some instances where the legislative body has explicitly acquiesced in the Court's decision by repealing the offending provisions;[49]though there are also examples where invalidated laws have not attracted even this limited degree of legislative response.[50]
There are also examples of new legislation attempting to be respectful of the Court's constitutional objections while seeking to achieve its original objectives.[51]A prominent example is Nationwide News Pty Ltd v Wills[52]('Nationwide News'), one of the twin cases in which the implied right to free political communication was dramatically announced in 1992. That case invalidated a provision which provided: 'A person shall not ... by writing or speech use words calculated to bring a member of the Commission into disrepute.'[53]In protecting the Commission against any criticism without the defences of justification or fair comment, the High Court held that the impugned provision went beyond anything which might be thought to be proportionate or appropriate and adapted to that legitimate purpose. The legislative sequel to Nationwide News came in the same year as the case was decided.[54]The section invalidated was deleted and replaced. The new provision gave the Commission protection of contempt of court, as if it were a court. Senator Bolkus explained:
The new provision will replace a broader provision ... which the High Court has recently found to be invalid. The High Court interpreted that provision as purporting to prohibit criticism of the Commission even when that criticism was honest and fair. The new provision will not suffer from that defect.[55]
Here, then, we appear to have a clear case of dialogue: the legislature is responding to the Court's finding of constitutional invalidity in a way which, to quote Hogg and Bushell, required only a 'relatively minor' amendment which respects the right in issue 'without compromising the objective of the original legislation'.[56]
However, although traces of 'dialogue' between legislatures and courts over rights can arguably be found, they would not be sufficient to demonstrate a tradition or current practice of 'dialogue' in Australia. Indeed, even if one were to count the 'due process' type cases, the number of examples of rights-based restrictions leading to constitutional invalidity in Australia would remain too small a sample to safely infer much about patterns of the institutional interaction which occurs between courts and parliaments. For Australian lawyers this claim is unlikely to raise more than a yawn, for in addition to the factors already mentioned, the two most prominent structural features facilitating Charter dialogue — ss 1 and 33 — are absent from the Australian Constitution. The absence of an equivalent to the Charter's override provision means, in Australia, it must be agreed that 'in the ultimate analysis, it is for the Court to determine whether [a] constitutional guarantee has been infringed in a given case.'[57](It is worth noting that the s 128 referendum mechanism, what Ackerman would call Australia's 'specially onerous lawmaking path',[58]cannot serve as anything like a functional equivalent to the Charter's override provision. It does not even come close to providing the basic requirement for dialogue as understood by Hogg and Bushell, namely, that the parties to the conversation are at least in a relationship approximating equality and that they can converse relatively promptly.[59]) Thus, not only is the existence of a practice of 'dialogue' unlikely, but it might be thought that such a practice is unlikely to develop.
It should be remembered, however, that Hogg and Bushell see s 33 as being, in practice, 'relatively unimportant'.[60]On their account s 33 has not been the driving force in the development of 'dialogue' in Canada; s 1 has been, they say, more significant. Interestingly, Australian jurisprudence on limitations on the implied freedom of political communication (and some other constitutional guarantees) has developed in ways similar to Canadian s 1 jurisprudence; the implied freedom is not considered absolute and is subject to a proportionality test not dissimilar to the Canadian doctrine. In Lange v Australian Broadcasting Corporation[61] a unanimous High Court identified the test, for determining whether a limit on political communication is justified, as follows:
[I]s the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people?[62]
In essence, this test, like the Canadian proportionality doctrine, requires the Court to consider the importance of the impugned law's objective in the context of the basic democratic structures of the polity, and then to consider whether the means used to achieve that objective are proportionate ('reasonably appropriate and adapted').[63]
It is, therefore, worth pursuing further the extent to which some of the underlying conditions for the emergence of a court/legislature 'dialogue' are latent within Australian jurisprudence on the implied freedom of political communication — perhaps the most lasting (and controversial) innovation arising from the High Court's sporadic attentiveness to human rights.
C The constitutionality of regulating election advertising
To examine this question I propose to consider it in the context of the much discussed and criticised election advertising case — Australian Capital Television Pty Ltd v Commonwealth.[64]It was in this case, along with Nationwide News, that the High Court announced its discovery of the implied freedom of political communication. It provides a useful case study as many critics of constitutional rights in Australia parade it as a prime example of rights-based judicial review gone badly wrong; good legislation lost on the say-so of seven unelected and comparatively uninformed judges. I will argue that there is more room for the legislature to respond to this decision than commonly allowed. But first it is necessary to outline the regulatory regime which was invalidated in ACTV.
Part IIID of the Broadcasting Act 1942 (Cth)[65]regulated the broadcasting of political advertisements on radio and television during election campaigns. It comprised two basic elements: (1) a general ban on political advertising; and (2) an exception to that ban, involving the allocation of free election broadcasts, to be administered by the Australian Broadcasting Tribunal ('ABT').[66]Significantly, Part IIID would not apply in relation to any particular election until the making of regulations dealing with the application of the free time provisions to that election.
The ABT's power to allocate free time for election broadcasts was to be exercised pursuant to the following requirements. Ninety per cent of the free time available was to be divided between political parties represented in the Parliament prior to the calling of the election in proportion to the number of first preferences they received at the previous election. The remaining ten per cent of the free time was to be allocated on the basis of applications for the grant of that time. The ABT had a duty to grant free time to applicants who were sitting senators seeking re-election not being members of a party that had already received a free time allocation. Otherwise the ABT was given the discretion, unconditioned by statutory criteria, to grant any remaining free time to political parties (so long as they endorsed one or more candidates) and independent candidates. The free time provisions did not allow the grant of broadcasting time to individuals or interest groups not seeking election.
The High Court held, on the basis of the newly discovered freedom of political communication, that the entire regime was invalid.
(b) The critique of the decision: blinded by the light?
In their illuminating and influential critique of ACTV, Gerald Rosenberg and John Williams argue that the High Court approached 'a near absolutist position', where the introduction of any regulations differing from the status quo would 'nearly always' constitute 'an abridgment of the guarantee of political free speech.'[67]In their view, 'there is nothing in the decision that suggests the Court would uphold legislation regulating access to the media'.[68]
These conclusions are, in my view, too strong. They are coloured by the view that the High Court, dazzled by the luminescence of American free speech jurisprudence, uncritically adopted the notion of the 'marketplace of ideas' and wrongly assumed existing practice was an unregulated 'market'.69 This interpretation, however, overestimates the influence of the marketplace of ideas rationale for free speech. As Rosenberg and Williams admit, the fact that United States cases were cited liberally in the judgments does not in itself demonstrate they were influential. Their suggestion, rather, is that the 'number and pattern of citations, and the analysis the High Court Justices offered, are, at the very least suggestive of influence.'[70] Yet in the case of most of these citations it is far from clear that the justices (with the possible exception of McHugh J)[71]drew any conclusions of significance about the marketplace of ideas rationale for the value of free speech.
Most of the citations on which Rosenberg and Williams rely are found in the course of two distinct arguments made by the High Court. The first concerns the implication of the freedom of political communication. The Court argued that the text and structure of the Australian Constitution evinced an intention to entrench 'representative government'. This was then said to carry an implication that freedom of political communication should be protected because it is 'essential to sustain the system of representative government prescribed by the Constitution.'[72]So when, for example, Mason CJ quotes Archibald Cox to the effect that freedom of speech is necessary for people to 'build and assert political power, including the power to change the men who govern them,'[73]it is difficult to read him as saying anything about the marketplace of ideas rationale for the protection of free speech. Indeed, to the extent that United States jurisprudence was an influential contributor to the development of this argument, it is more plausible to connect it with John Ely's argument that judicial review (on the basis of free speech and other rights) should focus on maintaining the channels of political representation and change.[74]
The second invocation of United States free speech jurisprudence in ACTV related to the distinction, drawn in some judgments, between restrictions which target the content of ideas directly and those which target the means of their communication. This distinction, familiar in United States constitutional law, is employed to place a higher standard of justification on laws which regulate speech by reference to content. Again, however, there is no reason to link this distinction to a 'free-market' notion of speech; some such distinction could be linked to a variety of justifications of free speech rights.[75]
It might be acknowledged, however, that while the Court's citations to United States’ authority do not commit it to a marketplace of ideas understanding of speech, the application of the implied freedom in the case demonstrates that a free-market understanding is adopted on the basis that the judges conclude that 'virtually any government regulation [will be seen] as interference with constitutional rights.'[76]This is, I think, the crux of Rosenberg and Williams' argument. In their analysis of Mason CJ's reasons, they rely heavily on the following statement: 'The consequence is that the severe restriction of freedom of communication plainly fails to preserve or enhance fair access to the mode of communication which is the subject of the restriction.' Surely, they conclude, it is '[o]nly by viewing the current system as "fair"' that Mason CJ can claim the Act fails to preserve or enhance fair access.[77]
However, as Rosenberg and Williams acknowledge, all of the majority judges plainly accept that the implied freedom is not absolute. In itself this suggests that the Court would be willing to uphold at least some legislation regulating access to the electronic media during election campaigns.[78]Even those judges who intimated a higher justification would be required for laws regulating the content of communication held that it was nonetheless necessary to weigh this against the competing interests.[79]Moreover, all in the majority accept that at least some purposes of the impugned legislation — safeguarding the integrity of the political process and levelling the playing field so more than the wealthy might have access to electronic political advertising — were legitimate legislative purposes. The majority held that the restrictions were not proportionate to these legislative purposes. Thus, the best way to respond to the claim that 'there is nothing in the decision that suggests the Court would uphold legislation regulating access to the media' is an analysis of the actual reasons given for invalidating the regime of Part IIID. If the objections to the legislation relied on by the Court could conceivably be overcome by modified legislation seeking to achieve the same objectives, the idea that the Court adopted a near absolutist position is, to that extent, undercut.
In the four majority judgments in ACTV, a number of reasons were offered in support of the conclusion that the impugned provisions were not proportionate to the legitimate objects of the legislation. It is always difficult in such cases to identify any reason, considered in isolation, as being dispositive of the case; inevitably each constitutional objection to the legislation is considered in the context of its overall operation. Notwithstanding such caveats the following reasons for invalidation appear to be the most significant.
1 Discrimination against those not seeking elected office. All majority judgments emphasised the fact that a complete prohibition of political advertising in the powerful broadcast media only applied to persons who were not candidates and to organisations who were not political parties endorsing candidates for election.[80]According to Gaudron J, this curtailment was not 'reasonable and appropriate ... in a context where candidates and political parties are allocated free time for their political advertisements'.[81]For Mason CJ, the concession that 'absolute equality in the sharing of free time is unattainable',82 was insufficient to justify the inequalities associated with the complete exclusion of 'electors, individuals, groups and bodies who wish to present their views' on the broadcast media.[83]
2 Discrimination in favour of established political parties and interests. Most majority judgments emphasised the fact that the free time allocations substantially favoured the status quo; time being allocated to the major parties according to their success at the previous election. The status quo has, of course, a habit of perpetuating itself in any event. But the judges worried about this entrenchment of the status quo becoming both a practical and a legal problem. In the words of Mason CJ, '[b]y limiting [new and independent candidates] to a maximum of ten per cent of the free time available for allocation, Pt IIID denies them meaningful access on a non-discriminatory basis'.[84]
3 The discretionary application and administration of the regulatory regime. The legislation involved two discretionary features which attracted adverse comment. First, there was a concern that while the legislation conferred a discretion on the ABT to allocate five per cent of the free time to new political parties and independent candidates, it did not 'attempt to enunciate the criteria according to which that discretion is to be exercised'.[85] But more important were concerns about the applicability of the provisions in the first place. Before the regime could come into operation, it was necessary for the executive governmen to make regulations for the allocation of free time. The legislation could thus be applied on an 'ad hoc basis' depending on what suited its interests best.[86]
According to Mason CJ it was 'difficult to conceive of a compelling, even of a reasonable, justification for a regime restricting freedom of communication which confers such an advantage on the Executive government'.[87]
(d) A possible 'dialogue' on election advertising?
We are now in a position to evaluate the prevalent claims that Australia 'had its window of opportunity' on the regulation of election advertising 'and the High Court slammed it shut'.[88]Is it accurate to conclude that there is nothing in the decision suggesting that modified regulation of political broadcasts during elections might be upheld?
I have already noted that it was clearly accepted that the implied freedom is not absolute, and that the legislation served legitimate purposes. The freedom could therefore be restricted by a law which was proportionate — reasonably and appropriately adapted — to those legitimate purposes. The Court objected to this particular regulatory regime, not regulation per se.
Of the specific reasons the Court offered for the conclusion that the purposes of the legislation did not justify the extent of the restrictions on political communication, the third is most easily dealt with. The application of the regime could have been made mandatory, and criteria established for the distribution of free time amongst parties and candidates seeking office, but not currently represented in the Parliament. Such modifications would necessarily require the Court to scrutinise its other objections with more care.
Taking next the second reason for invalidity — discrimination in favour of established parties — there is no reason why a legislative formula which could manifestly be seen to work towards destabilising established patterns of political power might not receive a more sympathetic judicial response. There is simply insufficient evidence in the judgments to conclude that a formula more generous to newcomers would not have significantly diminished the Court's constitutional concerns.
Perhaps, then, much hinges on the first reason: the discrimination against (due to the exclusion of) those not seeking elected office from use of the electronic media. How, if at all, might the exclusion of individuals and interest groups from the free time provisions be overcome in any legislative response? Let me start by admitting that the complexity of electoral regulation is not to be underestimated. However, it is not my intention to argue that re-drafted legislation would necessarily pass constitutional muster, nor that it would, in all respects, be as effective as the invalidated regime. Rather, my argument is simply that the judgments in ACTV do not justify the pessimism of the High Court's critics.
In his reasoning, McHugh J suggested that there were 'means less drastic than the provisions of Pt IIID' which were 'available to eradicate the [perceived] evil'.[89]He went on to list: '[t]he creation of special offences, disclosure of contributions by donors as well as political parties, public funding, and limitations on contributions'.[90]Here, however, I have no doubt that McHugh J seriously underestimates the complexity of such forms of regulation and the extent to which most have been tried and found wanting in Australia (and elsewhere).[91]More significant, in my view, are alternative regulatory regimes somewhat closer to the central components of the invalidated legislation.
One way of conceptualising the objection that the legislation discriminated against those not seeking elected office is to say that the free time provisions were under- inclusive; they illegitimately discriminated against non-politicians by not including them in the scheme. In theory, under-inclusive rules can be remedied in two ways. First, the benefits conferred by the rule on the favoured group may be removed. Second, the benefits conferred by the law can be extended to illegitimately excluded groups.[92]Conceivably, the free time provisions might be modified in either of these two general directions.
The first option could involve an extension of the total ban of electronic political advertising during an election campaign by simply eradicating the free time provisions. This possibility, which would (perhaps even to a greater extent) achieve the purposes sought by the invalidated legislation, may, however, be thought to travel too far from the legislature's original approach.[93]However within the general direction of extending the ban, we should recognise that it need not be extended in a blanket manner. Exceptions made in favour of established political parties remain a possibility so long as their discriminatory effect is more confined than that generated by the original free time provisions. For example, free broadcasting time allocated to political parties might proceed on the basis of longer but fewer broadcasting time slots. Under such a scheme the major parties could communicate their policy platform but would not have the advantage of bombarding the electorate with repetitive two-minute advertisements over the course of an election. A revised scheme might also incorporate a 'right of reply', in defined circumstances, for aggrieved third parties.[94] Changes to the legislation such as these, combined with efforts to resolve the other problems identified by the Court, may well be seen as appropriate and adapted to the legislature's objectives. Interestingly, Mason CJ explicitly recognised that a 'level playing field' was not possible, but thought that this argument would only justify free time provisions up to a point.[95] For him it was not powerful enough to justify the 'inequalities inherent in the regime introduced by Pt IIID',96 but that does not mean that it might not justify some broadcast time being allocated only to those actually seeking office.
The second general approach available to the legislature would entail a consideration of extending limited access to the electronic media to parties excluded by the free time provisions. This would potentially involve some very difficult policy issues. If interest groups or 'third parties' were to be given entitlement to apply for free time there would be questions as to how eligibility would be determined, given the reality that the hopes of every group or individual could not be satisfied. This problem would be alleviated to a small extent if the share of free time of established political parties was also reduced; but the problem would not evaporate. Even if it were possible to develop adequate criteria to choose which third parties were to be awarded free time,[97]some groups would inevitably miss out. But nonetheless it is a live possibility that if the extent of the exclusion was diminished, combined with a clearer explanation that there were no clearly less restrictive and efficacious means, the law may well be justified.[98]
This, however, is but one possibility. Other more secure options for extending access to third parties might involve simply removing the ban on those not seeking election, and substituting a combination of the sorts of regulatory techniques suggested by McHugh J (for example, spending limits and public funding) to regulate their access to the media. Admittedly, this would introduce complexities absent from the initial regulatory scheme, and there would arguably be losses in the simplicity and perhaps efficacy of the regime. However, the availability of such options is sufficient to illustrate the implausibility of the notion that the Court left in its wake a humbled Parliament with no options to achieve its policies.
D The relevance of 'dialogue' in Australia?
I hope my discussion of ACTV has at least shown that even in the context of the limited rights-based review under the Australian Constitution, court decisions will often leave 'room for an alternative or substitute law to be re-enacted in a form that still accomplishes the objectives of the original invalid law'.[99]So, while Hogg and Bushell's metaphor of dialogue is unlikely to provide a plausible general description of interactions between courts and legislatures over constitutional rights in Australia, it at least serves to remind us that the common assumption that judicial review is straightforwardly the last word can be seriously misleading. There is another important lesson. Critics of the High Court's implied rights jurisprudence should be wary of overstating its associated costs. The price to be paid for rights-based review (cashed out, according to some, as a democratic deficit) depends not just on what the judges say, but also upon how legislatures are apt to respond. Australia does lack effective regulation of political advertising during elections in part because of the decision in ACTV. But a fuller explanation would include the fact that most (or, most influential) politicians simply lost interest in the issue. The slowing of reform which (for better or worse) judicial review will sometimes involve is necessarily part of the price we pay for whatever benefits are associated with it. Critics of ACTV should be careful not to assume, by unnecessarily leaving the last word to the judges, that that price is higher than it needs to be.
These, however, are limited conclusions. I now want to ask whether the possibility that the sort of 'dialogue' described by Hogg and Bushell in the Canadian context might emerge or be created in other jurisdictions should modify the views of those who object on democratic grounds to the introduction of a bill of rights in Australia. In particular, I will raise the issues of the extent to which any such 'dialogue' can overcome democratic objections to rights-based judicial review and whether, in any event, the institutional interactions of courts and legislatures in Australia would be likely to take a similar shape, even if any bill of rights were to have structural features similar to the Canadian Charter.
4 DEMOCRACY, 'DIALOGUE' AND THE AUSTRALIAN BILL OF RIGHTS DEBATE
Are Hogg and Bushell correct to conclude that 'the critique of the Charter based on democratic legitimacy cannot be sustained'?[100]To answer this question it is useful to outline briefly the core democratic objection of many critiques of justiciable constitutional rights, noting also the standard lines of response.
There are a large number of different democratically inspired objections to constitutional rights combined with judicial review.[101] Though such concerns have 'ebbed and flowed' they seem 'now to be again at high tide'.[102] But at the core of many objections is a comparative point concerning the democratic pedigree and legitimacy of courts. Jeremy Waldron is especially good at ramming it home:
whatever you say about your favourite democratic procedures, decision-making on matters of high importance by a small elite ... is going to score lower than decision-making by the people or their elected and accountable representatives.[103]
In short, unlike majoritarian legislatures, courts undertaking judicial review are often considered democratic deviants.[104]
Waldron, of course, injects a novel sting into the tail of this familiar argument. Not only are courts inevitably less accountable to the electorate than are legislatures, but judicial review in appellate courts itself 'embodies a form of majority-rule.'[105]'The difference between decisions by the court and decisions by the ... legislature or by the electorate' he insists, 'is not a difference in decision-procedure, it is a difference in constituency: a constituency of nine [in the US], as opposed to voting constituencies numbered in the hundreds (in our legislatures) or in the millions (among the voters)'.[106]
There are a number of familiar responses to such arguments against rights-based judicial review. One broad strategy is to attempt to assuage democratic concerns by placing the supposed problems in some wider context. For example, it has been noted that the counter-majoritarianism of the US Constitution runs much deeper than judicial review: '[j]udicial review' notes Neil Komesar, 'is only one of many "undemocratic" institutional choices in the Constitution'.[107]A similar complaint might be that, if it is democracy one is worried about, then the fixation on justiciable constitutional rights seems misplaced. As Edward Rubin writes, '[t]he more far-reaching and intractable source of tension' between our institutions and democracy involves the existence of the administrative state — that is, 'the existence of a massive, appointed, and credentialed bureaucracy that carries out the great bulk of the government's activities'.[108]It has also been argued that the functional differences between giving courts full judicial review powers (considered undemocratic) and powers to interpret statutes to comport, wherever possible, with rights (considered democratic) have been overstated.[109]Then there are various US studies which basically conclude that the US Supreme Court follows the election returns, albeit with a bit of a time-lag.[110]Another response designed to temper democratic objections to rights-based judicial review might be to challenge the assumption (explicitly articulated by Waldron) that judicial review involves a constituency of only the individual members of the highest constitutional court. Judicial policy-making and doctrinal creation, it has been argued, is more complicated than the pronouncements of appellate judges, involving an institutional process of coordination (operating both vertically and horizontally) across the wider judiciary.[111]While none of these arguments render judicial review 'democratic', they can lead us to ask whether or not claims that we have 'government by the judiciary'[112]and so on are a little overdone.
A second general line of response to majoritarian objections to judicial review is more direct: 'democracy' is not just about majority rule but includes other values as well.[113] Although I have some sympathy for such responses, to deny judicial review is a more aristocratic form of governance than having rights issues determined by legislatures does have a hollow ring. If democratic values are contested, then Waldron and others are right to say that legislative decision-making potentially (perhaps normally) involves more people in the determination of what those values will be in a given polity than does decision-making by judges.[114]But, in the end, this fact about the relative inclusiveness of legislatures (if it be one) does not tell us anything about what 'democracy' is or where judicial review fits in. It remains the case that democracy, notoriously, is an essentially contested concept:[115]as such, it cannot uniquely determine our institutional structures; as such, judicial review may advance some conceptions of democracy in some circumstances and impede others.[116]In short, the question of whether rights-based judicial review is democratic or not, can only be assessed through its likely impact (which may well be uncertain and difficult to ascertain) on the values that animate democracy. The question cannot depend simply on how one conceptualises democracy.[117] Perhaps predictably, then, the debate over the desirability of rights-based judicial review by reference to the meaning of democracy has pretty much stagnated.
I want to return now to a consideration of the nature and force of Hogg and Bushell's conclusions about the democratic credentials of Charter review. (Although some Canadian commentators doubt Hogg and Bushell's empirical conclusions,[118] I am going to bracket that issue and ask whether their empirical conclusions — even if true — render democratic objections to rights-based review redundant or unimportant.)
A useful place to start is Jeffrey Goldsworthy's recent argument that Waldron's democratic objections to constitutional rights, based on the primacy of the right of equal participation, are rebutted by the mere existence of s 33.[119] As Goldsworthy emphasises, Waldron's argument is premised on the assumption that legislatures can only respond to a judicial determination of rights by attempting to secure a constitutional amendment, and that this will rarely be politically feasible. If, however, the legislature can respond to a court decision in the ordinary way, then there is no reason to think that the right to equal participation in the determination of public policy is violated. It might, of course, be responded that there is something non- democratic about a court slowing down the process of legal change or becoming involved in the law-making process at all. But such a claim is too strong; it would bring into question the legitimacy of the courts undertaking their non-constitutional functions as well.[120]
Hogg and Bushell's claims are consistent with Goldsworthy's argument, but the tenor of their response to the democratic objections to Charter review strikes me as very different. In particular, it is less philosophical and more grounded in Canadian practice. Although they cite s 33 as one of the structural features of the Charter which facilitates dialogue in Canada, Hogg and Bushell are not principally making an abstract claim about s 33's theoretical role in preserving citizens' equal rights to participate, or the ultimate right of Parliament to determine rights controversies. The purpose of their study of legislative sequels is to support their claim that the majority's or Parliament's right to govern has not been significantly eroded by the Charter as it actually operates — even allowing for the fact that, in practice, s 33 is unlikely to be invoked in all but the most extraordinary of circumstances. Their point, they maintain,
is that judicially-imposed constitutional norms rarely defeat a desired legislative policy; they generally operate at the margins of legislative policy, affecting issues of process, enforcement, and standards, all of which can accommodate most legislative objectives.[121]
As such, the response is best characterised as an attempt to diminish the force of majoritarian objections to rights-based judicial review rather than a reconciliation of the practice with an abstract conception of democracy (such as the right to equal participation). It cannot, of course, solve the counter-majoritarian difficulty completely; not least because sometimes issues at the margins can be thought to be of importance; not least because we are not always neutral about the means by which we should pursue our objectives.[122] But it is one way to show that majoritarian objections can be overstated.
Here we can also read Hogg and Bushell as heeding recent calls for the debate about constitutional rights to become more sensitive to the facts, in recognition of the growing realisation that the issues are not susceptible to purely abstract arguments about democracy or rights.[123]Their argument indicates one example of insensitivity, in theories such as Waldron's, to facts about how legislatures can and do respond to courts invalidating their legislation. Such facts do not, strictly speaking, render objections such as Waldron's irrelevant; but they may absorb much of their force. For Hogg and Bushell, the idea that the Charter puts rights beyond revision by anyone other than judges is too exaggerated to be taken seriously. Even if they are exaggerating a bit themselves, their point is nonetheless a useful corrective: judicial review need not, and, if their empirical findings are accurate, often does not, significantly diminish the capacity of Canadian parliaments to implement their policies.
However, it needs to be emphasised that if Hogg and Bushell think or imply they have refuted all democratically inspired objections to judicial review, they significantly overstate their case.[124]Many democratic objections to judicial review are not merely about who gets the final say. Despite the academic fixation on the counter-majoritarian difficulty, not all democratic objections to judicial review focus on the courts' comparative lack of democratic accountability. In particular, some democratic objectors express concerns over the impact of judicial review on the overall health and well- being of a democracy. Peter Russell, writing in 1983 on the possible impacts of the Charter on the processes of government, eloquently presented an argument of this type:
We should not lose sight of the possibility that excessive reliance on litigation and the judicial process for settling contentious policy issues can weaken the sinews of our democracy. The danger here is not so much that non-elected judges will impose their will on a democratic majority, but that questions of social and political justice will be transformed into technical legal questions and the great bulk of the citizenry ... will abdicate their responsibility for working out reasonable and mutually acceptable resolutions of the issues which divide them.[125]
The source of the danger to democracy identified by Russell is not simply the courts' power of judicial review, but includes the way political actors and citizens might respond to what courts say. For instance, under a system of constitutional rights and judicial review: legislators may become unduly timid, content to leave courts to resolve controversial moral issues; judicially articulated constitutional norms may be misunderstood by legislatures leading them to unnecessarily jettison their preferred policies; citizens may become more litigious, focused too narrowly on their own rights; the courts may become the focus of interest group politics the resolution of which may be better thrashed out in legislatures; interest groups themselves may be reconfigured,energised or dissipated in response to a particular court decision or the introduction of judicial review itself.[126]To these familiar arguments, one could, no doubt add other ways in which constitutional rights and judicial review might work to weaken the sinews of democracy.
Thus while Hogg and Bushell's argument does arguably indicate that Canadian legislatures are not abdicating their responsibility to take a stand on many rights controversies, their argument does not dispose of all the various concerns about the impacts of judicial review on the vitality of democracy. However, it might be thought that the drift of their argument, away from a focus on philosophical conceptions of democracy to a more fact-sensitive inquiry about the actual impact of judicial review on Canadian democracy, is something to be welcomed.
While the debate will no doubt profit from a greater understanding of the actual impacts of rights-based judicial review, we need also to appreciate the limits of such studies. It may be true that non-consequentialist commitment to ideals such as democracy prove too abstract to determine whether we should prefer the institution of rights-based judicial review to its absence. But if we change our focus to consequentialist inquiries about institutional choice, we must also admit the difficulty of that task. Adrian Vermeule offers this pessimistic assessment about fact-sensitive inquiries into judicial review:
The information necessary to make the assessment [about the desirability of judicial review] is unobtainable, or at best excessively costly to obtain; the scale of the questions is too large; the interaction between institutions is too dynamic and complex; and the possibility of unintended consequences from any choice of institutional arrangement is too great.[127]
In short, fact-sensitive inquiries as to the impact of judicial review on democracy and rights inevitably raise issues of causation and cultural interpretation of such complexity that it is difficult to even imagine how they might realistically be resolved.[128]
Moreover, exactly what impacts rights-based review is found to have will inevitably depend upon normative views about the functions or purposes which it is supposed to serve in a given jurisdiction. Peter Cane has recently made this point in relation to studying the impacts of judicial review of administrative action on bureaucratic behaviour:Views about such purposes and functions [of judicial review] affect the choice and definition of the impacts to be studied, and the conclusions drawn from the data collected. These various links between views about functions and purposes on the one hand, and studies of impact on the other, underline the importance of taking care in defining the term 'judicial review' in the phrase 'the impact of judicial review'... [I]t is ... important for the empirical researcher to address and articulate the normative foundations on which the research, and the conclusions drawn from it, are based.[129]
Fact-sensitive inquiries about the impact of rights-based judicial review are thus unlikely to simply replace arguments about the desirability of justiciable constitutional rights, even as they add layers of sophistication to the debate. This observation applies generally and in relation to Hogg and Bushell's specific study. The debate over constitutional rights is likely to remain messy and intransigent.
To the extent stronger claims are made on the basis of Hogg and Bushell's study I suspect that any such claimants will have been, at least partly, misled by the chosen metaphor of 'dialogue'. The notion of 'dialogue' provides an overly cerebral and abstract account of the phenomenon under description. The process under examination might be better described in the more prosaic language of 'institutional interaction'. Thus described, it is clear that so-called 'dialogue' between courts and legislatures in Canada has no theoretically defined scope or nature: patterns of institutional interaction are likely to change over time and to be subject to a range of influences (legal doctrine being only one such influence). 'Institutional interaction' is not as catchy, but it does usefully emphasise the contingency, complexity, and changeability of the observed 'dialogue' without implying that Canadian courts and legislatures are engaged in an amicable, standing seminar on rights discourse where achieving 'reasonable' outcomes seems inevitable given sufficient communication between the discussants. It also highlights what I take to be a general, and important, lesson of Hogg and Bushell's analysis: in addition to the increasing calls for comparative institutional analysis in the debate over constitutional rights, we should also insist upon an interactional analysis. It may be, as is often claimed, that legislatures have greater legitimacy and institutional competence in making determinations about questions concerning rights than do courts. But this either/or approach neither captures existing reality nor the variety of possibilities as to how the two institutions might be beneficially combined in the search for better ways to protect rights and foster democratic ideals.[130]
B Creating 'dialogue' in Australia?
Although I have argued that Hogg and Bushell's study does not resolve the issue of the legitimacy of judicial review, I have also accepted that its findings do usefully indicate that common assumptions about courts necessarily having the last word in rights controversies are often inaccurate and misleading. Legislatures can and do achieve their policies, notwithstanding having their first legislative attempts invalidated, and this does not always require reliance on a formal power of legislative override.
I now want to briefly raise the question of whether the patterns of institutional interaction described in Canada would likely be replicated in Australia, even if any Australian bill of rights had similar structural features to the Charter. The potential for what Hogg and Bushell call 'dialogue' is unlikely to ameliorate any objections to constitutional rights in Australia, if it is unlikely to develop in practice.
Although the nature of any institutional interaction can undoubtedly be influenced by institutional design, exactly what sort of interaction might occur will be difficult to predict. It is, perhaps, instructive that in Canada there is still no uncontroversial explanation for the virtual desuetude of s 33.[131]Nor might it have been predicted that the existence of the override, even if not regularly used, would contribute to fostering 'dialogue' through other means — by arguably emboldening legislatures and chastening courts as they undertake their interpretive task. So the extent to which Australian courts would become the 'last word' on any comprehensive set of constitutional rights is a question of considerable difficulty. Certainly, this cannot be determined by simple reference to the terms of an Australian bill of rights or any associated legal doctrine. Importantly, for reasons already given, while such predictions may be assisted by a more detailed study of the actual capacities and operations of courts and legislatures in Australia and the surrounding legal and political cultures, such undertakings will necessarily be contestable and subject to considerable interpretive judgments.
It is, however, possible to identify potential barriers to the development of 'dialogue' in Australia. For example, doubts about the emergence and viability of a Canadian-style interaction between courts and legislatures over rights in Australia may arise from the fact that the Australian Parliament is, in practical institutional terms, a more divided and to that extent weaker institution than its Canadian counterpart.[132]
Although the Canadian Senate has similar formal powers, it is an appointed body and has tended not to obstruct government policy.[133]So while the Canadian and Australian parliaments both operate in the context of well-entrenched political parties, the government in Canada has a freer legislative hand than is likely to be the case in the Australian Commonwealth Parliament. Would the comparative political strength of the Australian Senate weaken the Commonwealth Parliament's capacity to respond quickly and effectively to court determinations which impede its policy objectives? In practice, once the High Court says legislation violates rights, it may be difficult indeed to get redrafted legislation through the Senate — even if the redrafting is a good faith response to the Court's decision.[134]Thus, while Hogg and Bushell's study does usefully raise questions about the asserted extent of democratic costs of constitutional rights and does illustrate the relevance of interactional and more 'fact-sensitive' institutional analyses in our debates over constitutional rights, any direct lessons to be drawn in the Australian context are likely to remain fraught and contestable.
There are two principal conclusions which I would draw from my examination of the relevance of Canadian style 'dialogue' to debates about constitutional rights and judicial review in Australia. Both conclusions, however, can be stated at a level of generality such that they are applicable, not only to the Australian debate, but to general debates about the democratic legitimacy of rights-based review. First, I have argued that Hogg and Bushell's study and their notion of 'dialogue' does usefully invite us to engage in more fact-sensitive inquiries as to the extent to which judicial review, even in a jurisdiction such as Australia which currently lacks anything akin to a legislative override provision, really does constitute the last word in rights controversies, so as to prevent democratically accountable legislatures achieving their policy objectives (albeit through modified means). Once such possibilities and facts are factored into the calculus over the desirability of judicial review, there is a real possibility that the 'democratic deficit' generated by rights-based judicial review is more modest than sometimes claimed.
The second conclusion I would like to emphasise is that the existence of a Canadian style 'dialogue' cannot overcome democratic objections to judicial review. Not only can it not straightforwardly overcome the counter-majoritarian difficulty, but it fails to fully address a host of other legitimate concerns raised about the impacts of justiciable rights on the culture of democracy in a particular jurisdiction. A related conclusion is that in Australia, and elsewhere, we should not assume that merely by replicating the structural features of the Charter, we would thereby generate a pattern of institutional interaction over rights similar to that which Hogg and Bushell observed in Canada. As such, the notion of 'dialogue' cannot and should not prevent us from continuing to investigate the potential impacts that rights-based judicial review may have on the operation and vitality of democracy in Australia or elsewhere, even if it provides grounds for questioning whether some of its supposed democratic costs have been overestimated.
[*] 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 HallLaw Journal 75.
[4] Ibid 105.
[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.
[7]Hogg and Bushell, above n 3, 105. See below n 124.
[8]Ibid 79.
[9]Ibid 79–80.
[10]Ibid 80.
[11]Ibid 81.
[12] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11, s 33. Section 33 of the Charter applies only to the 'fundamental freedoms' (s 2), 'legal rights' (ss 7–14), and 'equality rights' (s 15). The 'democratic rights' (ss 3–5), 'mobility rights'(s 6), and 'language rights' (ss 16–23) are excluded from its operation.
[13] Hogg and Bushell, above n 3, 83.
[14] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK)c 11, s 1.
[15] Hogg and Bushell, above n 3, 84-5. See R v Oakes [1986] 1 SCR 103, 138–9. See also Jeremy Kirk, 'Constitutional Guarantees, Characterisation and the Concept of Proportionality'(1997) [1997] MelbULawRw 1; 21 Melbourne University Law Review 1, 4.
[16] Hogg and Bushell, above n 3, 85.
[17] Ibid.
[18] Ibid 87. A similar process of 'dialogue' is observed in the Court's interpretation of the rights contained in ss 7–9, and 12 of the Charter (where limitations of fairness and reasonableness are contained within the right as stated): see Hogg and Bushell at 87–8.
[19] Charter, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK)c 11, s 15.
[21]Ibid 691 (La Forest J).
[22] David Wiseman, 'The Charter and Poverty: Beyond Injusticiability' (2001) 51 University ofToronto Law Journal 425, 453.
[23] Hogg and Bushell, above n 3, 91.
[24] Ibid 92.
[25] See ibid 94. For example, although the Supreme Court of Canada held that the purpose of the Lord's Day Act, RSC 1970, c L-13, which prohibited Sunday trading, was 'to compel the observance of the Christian Sabbath' and was thus in violation of the guarantee of freedom of religion (R v Big M Drug Mart Ltd 1985 CANLII 69; [1985] 1 SCR 295, 351), it does seem that the Court would accept a law restricting Sunday trading which spelled out a secular object: R v Edwards Books and Art Ltd [1986] 2 SCR 713.
[26]Hogg and Bushell, above n 3, 95.
[27]Ibid 97.
[28]Ibid 98.
[29]Ibid.
[30]Ibid 81.
[31]Ibid 98.
[32] Ibid 105.
[33] Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd ed, 1986).
[34] See Suzanna Sherry, 'Too Clever By Half: The Problem with Novelty in Constitutional Law'(2001) 95 Northwestern University Law Review 921, 921 ('almost every major constitutional scholar writing [in America] today ... [is] motivated by a desire to overcome the counter-majoritarian difficulty').
[35]Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 262 (Fullagar J).
[36] For example, the Australian Constitution contains limited guarantees of trial by jury (s 80) and freedom of religious exercise (s 116), and limitations on discrimination based on state residency (s 117) and acquisition of property other than on just terms (s 51(xxxi)). The extent to which s 80 should be given a rights-protective reading has recently been questioned, see James Stellios, 'Section 80 of the Constitution — "A Bulwark of Liberty"?'(Paper presented at the ANU Centre for International and Public Law Annual Public Law Weekend, Canberra, 7–9 November 2003). Stellios makes the argument that the best way to think about the purpose of s 80 is as a structural provision which facilitates the exercise of Commonwealth judicial power in a federation.
[37] Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10967 (Alfred Deakin, Attorney-General).
[38](1952) 85 CLR xi, xiv (swearing in of Sir Owen Dixon as Chief Justice of the High Court).
[39] See, eg, Stephen Gageler, 'Foundations of Australian Federalism and the Role of Judicial Review' (1987) 17 Federal Law Review 162, 175–181; Brian Galligan, Politics of the High Court(1987).
[40] In the case of review based on the implied right to political communication in Australia, I use the phrase 'rights-based judicial review' as convenient shorthand. Although the High Court prefers to speak of immunities from legislative power (see, eg, Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 560), nothing for my purposes turns on a strict application of the Hohfeldian conception of rights relationships. See Wesley N Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (first published 1919, 2003 ed). Applying Hohfeld's nomenclature, one might say that an implied right corresponds with a legislative duty to legislate in a particular way, whereas an implied immunity corresponds with a legislative disability. In both cases the result is that the legislature is denied power to enact certain legislation such as to enliven the democratic objection. This is not to say that invoking the language of rights as opposed to immunities is of no consequence. For example, conceptualising the implied right as a right, rather than an immunity, may mean that the legislature has an obligation to legislate in particular, positive ways. That is to say that a right may correlate with a positive duty. Whereas violation of a legislative immunity will result in invalidity of a violating law (as the legislature has no power in Hohfeldian terms), the violation of a right need not lead to the invalidity of a legislative act as the relevant legislative duty (for example, if it is a positive duty) may be better enforced through remedial means which do not lead to the striking down of any legislation. See Denise Réaume, 'Language, Rights, Remedies, and the Rule of Law' (1988) 1 Canadian Journal of Law and Jurisprudence 35 for an insightful discussion of these concepts in the context of different types of constitutional rules and remedies.
[41] See Bickel, above n 33, 16.
[42] See, eg, Jeffrey Goldsworthy, 'The High Court, Implied Rights and Constitutional Change' (1995) 39(3) Quadrant 46.
[43] One might also examine legislative responses to legislation invalidated on federalism grounds. However, in maintaining the constitutionally mandated division of powers, the High Court has tended to rely on legal tests to ascertain the character of the challenged law — is the law one with respect to a particular subject matter? Thus, federalism cases generally make comparatively less use of legal tests which involve a structured balancing of competing interests and principles (akin to the Canadian proportionality test). For discussion of the problem of 'characterisation', see Leslie Zines, The High Court and the Constitution (1997) 17-36. Though this contrast between approaches is not always clear cut, one might expect there to be less scope for 'dialogue' in relation to federalism cases than cases concerning constitutional rights. Similarly, Roach, 'Constitutional and Common Law Dialogues', above n 5, 504.
[44] Express constitutional rights have been read very narrowly. For an account, see, eg, George Williams, Human Rights under the Australian Constitution (1999).
[45] See, eg, Leeth v Commonwealth (1992) 174 CLR 455 (upholding legislation which allowed divergent parole expectations to depend upon the State in which a prisoner had been convicted, despite a majority of the court giving various levels of support for an implied constitutional guarantee concerning equality); Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501 (holding that bills of attainder would be an invalid usurpation of the judicial power, but that the War Crimes Amendment Act 1988 (Cth), was not such legislation).
[46] See, eg, Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 (legislation which gave the Supreme Court of NSW the function of deciding whether one named person be detained on the basis of whether he would, on the balance of probabilities, commit a serious crime, was invalidated as incompatible with state courts' continuing role in the exercise of the judicial power of the Commonwealth). See generally George Winterton, 'The Separation of Judicial Power as an Implied Bill of Rights', in Geoffrey Lindell (ed), FutureDirections in Australian Constitutional Law (1994); Fiona Wheeler, 'The Doctrine of Separation of Powers and Constitutionally Entrenched Due Process in Australia' [1997] MonashULawRw 18; (1997) 23 Monash University Law Review 248.
[47] Although the High Court has admitted 'elements of history and policy' are difficult to expunge from definitions of judicial power, it maintains that such considerations 'cannot be conclusive', see Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR [245], 267.
[48] Here I assume that not every argument which leads to conclusions supportive of individual interests is appropriately characterised as a rights-based argument. See Ronald Dworkin, Taking Rights Seriously (1977) 90–100 (distinguishing 'rights'-based and 'goals'-based arguments).
[49] See, eg:
(1) Re Loubie [1986] 1 Qd R 272 (invalidating legislation which made applications for bail more onerous for out of state residents, pursuant to s 117 of the Australian Constitution). The offending provision, Bail Act 1980 s 16(3)(b) (Qld), was deleted by Bail Act and Other Acts Amendment Act 1988 s 12C (Qld).
(2) R v Smithers; Ex parte Benson [1912] HCA 96; (1912) 16 CLR 99 (invalidating legislation offending s 92 and, for one justice, an implied constitutional freedom of movement). The offending Influx of Criminals Prevention Act 1903 (NSW) was repealed by the Statute Law Revision Act 1937 (NSW). However, as the repeal did not come for 34 years and was part of a general clean up of the statute books, this case may not qualify as 'dialogue' even if one includes, within that notion, parliamentary capitulation!
[50] See, eg, Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 ('ACTV') (see below Part 3C).
[51] It is not unknown for the legislature to make amendments in line with constitutional objections raised in a dissenting opinion. See Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 (Dawson J, dissenting); Electoral and Referendum Amendment Act 1998 (Cth) sch 1 amending s 240 and repealing ss 270(2), 329(3) and 329A of the Electoral Act 1918 (Cth).
[52] [1992] HCA 46; (1992) 177 CLR 1 ('Nationwide News').
[53] Industrial Relations Act 1988 (Cth) s 299(1)(d)(ii).
[54] Industrial Relations Legislation Amendment Act [No 2] 1992 (Cth) inserting a new s 299(1)(d)into the Industrial Relations Act 1988 (Cth).
[55] Commonwealth, Parliamentary Debates, Senate, 15 October 1992, 1884 (Senator Nick Bolkus).
[56] Hogg and Bushell, above n 3, 81. This conclusion is, however, weakened to the extent the constitutional problem had less to do with any choices which related to the government's policy but was, as Brennan J speculated, 'the consequence of a drafting error rather than the result of deliberate legislative choice', Nationwide News [1992] HCA 46; (1992) 177 CLR 1, 52. For, perhaps, a better example, see John Fairfax Publications Pty Ltd v Attorney General (NSW) ([2000] NSWCA 198; 2000) 158 FLR 81 which struck down ss 101A(7) and (8) and read down s 101A(9) of the Supreme Court Act1970 (NSW), provisions which had been inserted by the Courts Legislation Amendment Act 1996 (NSW). Section 101A was then amended by the Courts Legislation Amendment Act 2000(NSW) sch 13(2), (3). In the Second Reading speech Mr Moss (New South Wales,Parliamentary Debates, Legislative Assembly, 30 May 2000, 6107) said: The President of the Court of Appeal has suggested that it seems anomalous that the hearing of such a question of law should occur in camera where the parties consent to a public hearing and the court thinks it proper to do so. This is particularly the case since it is the usual practice of the court to defer the hearing of contempt proceedings until the verdict has been reached in the particular trial. It is therefore proposed to remove the requirement in s 101A(7) to hear the proceedings in camera. It is further proposed that s 101A(8) be amended to provide that the identity of the contemnor may be published where he or she consents to his or her identity being disclosed.
[57] ACTV [1992] HCA 45; (1992) 177 CLR 106, 144 (Mason CJ).
[58] Bruce Ackerman, 'Constitutional Politics/Constitutional Law' (1989) 99 Yale Law Journal [453], 464.
[59] Hogg and Bushell, above n 3, 79, 99.
[60] Ibid 83.
[61] [1997] HCA 25; (1997) 189 CLR 520.
[62] Ibid 567.
[63] For helpful accounts, see David Wiseman, 'Implied Political Rights and Freedoms' in Sarah Joseph and Melissa Castan, Federal Constitutional Law: A Contemporary View (2001) 334–7 and Kirk, above n 15. Some members of the Court have, at times, sought guidance in the application of the implied freedom by reference to a two-tiered test applying stricter scrutiny to some categories of laws. The status of this approach remains uncertain. It is clear, however, that even when judges have suggested stricter scrutiny is appropriate, they also accept the necessity to balance the competing public interests against the interest in freedom of political communication. See Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication' [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.
[64] [1992] HCA 45; (1992) 177 CLR 106.
[65] Inserted by the Political Broadcasts and Political Disclosures Act 1991 (Cth).
[66] There were two other exceptions to the general ban. Section 95A permitted news, current affairs items and talk-back radio to be broadcast; s 95S allowed for the broadcasting of policy launches, for up to 30 minutes, for political parties represented in the Parliament.
See Broadcasting Act 1942 (Cth).
[67] Gerald Rosenberg and John Williams, 'Do Not Go Gently Into That Good Right: The First Amendment in the High Court of Australia' (1997) 11 Supreme Court Review 439, 460.
[68] Ibid.
[69] Ibid.
[70] Ibid 452.
[71] ACTV [1992] HCA 45; (1992) 177 CLR 106, 236.
[72] Ibid 149 (Brennan J).
[73] Ibid 139 (Mason CJ, quoting Archibald Cox, The Court and the Constitution (1987) 212).
[74] Ely, above n 2.
[75] See, eg, Richard Fallon Jr, 'The Supreme Court, 1996 Term — Foreword: Implementing the Constitution' (1997) 111 Harvard Law Review 54, 89 who links it to Ely's theory.
[76] Rosenberg and Williams, above n 67, 441.
[77] Ibid 460. Rosenberg and Williams, at n 67, 458–9 argue that it would be erroneous to see the status quo as free from government regulation, given that regulation of political advertising is achieved by the constitutive role the government plays in creating media outlets, their corporate structures and the background market economy in which they operate. But the Court does not, on my reading, commit itself to a denial of this point.
[78] See, eg, ACTV [1992] HCA 45; (1992) 177 CLR 106, 169 (Deane and Toohey JJ): A law prohibiting or restricting political communications by reference to their character as such will be consistent with the prima facie scope of the implication only if, viewed in the context of the standards of our society, it is justified as being in the public interest for the reason that the prohibitions and restrictions on political communications which it imposes are either conducive to the overall availability of the effective means of such communications or do not go beyond what is reasonably necessary for the preservation of an ordered and democratic society or for the protection or vindication of the legitimate claims of individuals to live peacefully and with dignity within such a society.
[79] Rosenberg and Williams, above n 67, 453 write, 'Mason held that in balancing the competing public interests in banning certain political speech, 'paramount weight' must be given to protection of that speech', implying that Mason CJ was accepting something akin to what Fallon, above n 75, 67–8, calls a 'forbidden-content test' — a test which identifies a particular sort of statute or policy as absolutely unconstitutional and where no real assessment of the government's interest in enacting the statute is necessary. What Mason CJ wrote in full was this: 'even in these cases [that is, those for which compelling justification must be found], it will be necessary to weigh the competing public interests, though ordinarily paramount weight would be given to the public interest in freedom of communication': ACTV [1992] HCA 45; (1992) 177 CLR 106, 143 (emphasis added). In the end, the content– means distinction did not really matter as Mason CJ held that the government had failed to establish a reasonable justification, let alone a compelling one, that the law was a proportionate to the achievement of its ends. See at 147.
[80] Cf Rosenberg and Williams, above n 67, 444 (noting that the entities who could apply for time available under the free time provisions 'included interest groups'). However, unless you were a candidate or a political party which had endorsed at least one candidate there was no entitlement to apply for free time: ACTV [1992] HCA 45; (1992) 177 CLR 106, 172 (Deane and Toohey JJ) (referring to ss 95L(1)(a), 95M(1) and 95M(2) of the Broadcasting Act 1942 (Cth)). See also at 237 (McHugh J). Interest groups could thus only apply for free time if they were registered as a political party and running a candidate in the election.
[81] ACTV [1992] HCA 45; (1992) 177 CLR 106, 221. Some judgments emphasised that this was particularly problematic as those excluded from advertising may be unable to respond to damaging material broadcast on advertisements or news and current affairs programs. See, eg, at 146 (Mason CJ).
[82] Ibid 146.
[83] Ibid 145–6.
[84] Ibid 146; see also 172 (Deane and Toohey JJ), 237 (McHugh J). Justice Gaudron expressly declined to commit on this point, stating 'it may be possible ... to view [the operation of Pt IIID] with respect to candidates and political parties as reasonable and appropriate regulation', at 220.
[85] Ibid 132 (Mason CJ).
[86] Ibid 174 (Deane and Toohey JJ).
[87] Ibid 147. Mason CJ was of the view that the first two reasons alone were sufficient to invalidate the legislation: at 146. 88 Phillip Adams, 'Bad Ads Blitz For Followers' The Weekend Australian (Sydney), 26 September 1998.
[89] ACTV [1992] HCA 45; (1992) 177 CLR 106, 238.
[90] Ibid 239.
[91] On the history of campaign regulation in Australia see Deborah Cass and Sonia Burrows,'Commonwealth Regulation of Campaign Finance — Public Funding, Disclosure and Expenditure Limits' [2000] SydLawRw 23; (2000) 22 Sydney Law Review 477. See also Frederick Slabach (ed), The Constitution and Campaign Finance Reform: An Anthology (1998).
[92] For a valuable discussion in the context of statutory interpretation, see Janet McLean,'Legislative Invalidation, Human Rights Protection and s 4 of the New Zealand Bill of Rights Act' (2001) 4 New Zealand Law Review 421, 431–3.
[93] See Joint Standing Committee on Electoral Matters, Parliament of the Commonwealth of Australia, Who Pays the Piper Calls the Tune — Minimising the Risks of Funding PoliticalCampaigns (1989) 92 which rejected a complete ban, seemingly on the basis that 'it would have an adverse effect on freedom of speech and in particular would disadvantage citizens and groups who wished to bring issues before the electorate. The beneficiaries of a complete ban would be the existing major parties'. It is difficult, however, to see how the final legislative scheme adequately responded to the problem of bias in favour of the major parties.
[94] See above n 81.
[95] ACTV [1992] HCA 45; (1992) 177 CLR 106, 146 (Mason CJ).
[96] Ibid.
[97] For example, one might consider criteria analogous to those thought appropriate for litigants to establish 'representative standing' in public interest litigation. It is not immediately clear why such criteria would, in principle, be less justifiable than willingness and capacity to pay for political advertising.
[98] In introducing new legislation, the Commonwealth Parliament could attempt to make it clear that the High Court had misunderstood the nature or significance of its objectives and make an effort to justify the particular means chosen. Cf Roach, 'Constitutional and Common Law Dialogues', above n 5, 506. A more directive or explanatory use of preambles may be one mechanism for achieving this. See Kent Roach, 'The Uses and Audiences of Preambles in Legislation' (2001) 47 McGill Law Journal 129 for an analysis of the Canadian experience.
[99] Monahan, above n 5, 388. In describing and endorsing the Hogg and Bushell thesis,Monahan states that such alternatives will 'nearly always' be available: at 388. While I do not think this article has justified a similarly strong claim in the context of the limited rights-based review in Australia, the nascent proportionality analysis adopted in relation to the implied freedom of political communication will, at the very least, often allow legislative room for manoeuvre.
[100] Hogg and Bushell, above n 3, 105. See below n 124.
[101] Some of which preserve a diminished role for the courts, while at the same time seeking to develop a theory of judicial review to keep the courts within a democratically legitimate zone of operation. See, eg, Ely, above n 2.
[102] Christopher Eisgruber, 'Constitutional Self-Government and Judicial Review: A Reply to Five Critics' (2002) 37 University of San Francisco Law Review 115, 189. See, in particular, the influential work of Jeremy Waldron, Law and Disagreement (1999) (arguing that judicial review is not consistent with the primacy of the right to equal participation in the determination of public policy) and Mark Tushnet, Taking the Constitution Away From theCourts (1999) (arguing for a form of popular constitutional law and the repatriation of the Constitution to the people).
[103] Jeremy Waldron, 'A Right-Based Critique of Constitutional Rights' (1993) 13 Oxford Journalof Legal Studies 18, 45. This point essentially echoes Ely as quoted in my introduction.
[104] Bickel, above n 33, 18.
[105] Jeremy Waldron, 'Eisgruber's House of Lords' (2002) 37 University of San Francisco LawReview 89, 108. See also Waldron, above n 102, 26.
[106] Waldron, 'Eisgruber's House of Lords', above n 105, 108. As Eisgruber, above n 102, 127, notes, once Waldron characterises the argument this way, it is hard to see why he does not inevitably prefer direct, rather than representative, democracy. He cannot, presumably, claim that the quality of reasoning in elected assemblies is likely to improve the quality of deliberation, as that is precisely the sort of claim his characterisation of judicial review as a majoritarian decision-maker is designed to deny.
[107] Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy (1994) 266–7. Komesar continues (at 267): To use the standard legitimacy formulation, why should senators, under the original Constitution elected by the state legislatures, make public policy? Why should a president, elected by an electoral college, make public policy? As it turns out, neither of these deviations from direct popular election now make any difference ... In turn, why should representation ever be other than proportional to population? Why should public officials elected only every six or four or even two years make public policy? Why should public officials, that is representatives, make decisions at all? Why not a perpetual town meeting? Why have a remote national government rather than more immediately accessible local decision-making?
[108] Edward Rubin, 'Getting Past Democracy' (2001) 149 University of Pennsylvania Law Review711, 711. For an argument that bureaucratic decision-making cannot be characterised in majoritarian terms, see Matthew Adler, 'Judicial Restraint in the Administrative State:Beyond the Countermajoritarian Difficulty' (1997) 145 University of Pennsylvania Law Review759. Adler also notes that 'statutory invalidation ... comprises only a minority of judicial review cases even at the Supreme Court level'; most cases involve the decisions of bureaucrats: at 810 n 132.
[109] McLean, above n 92, 435 ('[I]t is erroneous to suggest that an act of statutory interpretation is always less aggressive than an act of judicial invalidation.'). See also Frederick Schauer,'Ashwander Revisited' (1995) Supreme Court Review 71, 97; Jerry Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law (1997) 101−5.
[110] See, eg, Robert Dahl, 'Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker' (1957) 6 Journal of Public Law 279; Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (1988) 197−200. See also Barry Friedman, 'Dialogue and Judicial Review' (1993) 91 Michigan Law Review 577, 671−80 (discussing the nature of the constraints on judges generated by political pressures and appointments).
[111] Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern State: How theCourts Reformed America's Prisons (1999) 226−41.
[112] To borrow from a famous title: Raoul Berger, Government by Judiciary: The Transformation ofthe Fourteenth Amendment (1977).
[113] More particularly, some theorists, the exemplar being Ronald Dworkin, Freedom's Law: TheMoral Reading of the American Constitution (1996), argue that a richer conception of democracy includes the protection of substantive individual rights. If human rights are, as Jürgen Habermas puts it, internally related to (or co-original with) popular sovereignty, then there is more to democracy than majoritarianism. See Jürgen Habermas, Between Factsand Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg trans,1996) 455 [trans of: Faktizität und Geltung] ('private and public autonomy reciprocally
presuppose one another in such a way that neither one may claim primacy over the other').
[114] Though it remains the case that in some legal and political contexts, oppressed persons may have more chance of participating in decisions of importance to them by taking their claims to courts. See, eg, the various innovations which have opened the doors of the Supreme Court of India to petitions on behalf of the poor: see Jamie Cassels, 'Judicial Activism and Public Interest Litigation in India: Attempting the Impossible?' (1989) 37 American Journal of Comparative Law 495.
[115] Gallie's idea of essentially contested concepts was not simply the thesis that some concepts are contestable to the extent they are value-laden. He also insisted that, for concepts to be essentially contested in his sense, the disputes about their meaning must turn on historical traditions of usage and that the continuation of such disputes is itself of value. See W B Gallie, 'Essentially Contested Concepts' in Philosophy and the Historical Understanding (1964)157–91. See also Leslie Green, 'The Political Content of Legal Theory' (1987) 17 Philosophy ofthe Social Sciences 1, 18 ('essentially contested concepts are therefore not merely concepts whose essences are contested, but rather concepts the contest about which is part of their essence. If the argument about such a concept were to cease, we would thus have better reason to think that we had lost the concept than that we had resolved the dispute').
[116] Cf Dan Kahan, 'Democracy Schmemocracy' (1999) 20 Cardozo Law Review 795 (making a similar claim in the context of the constitutionality and desirability of delegating legislative power to administrative agencies).
[117] For elaboration, see Leighton McDonald, 'Regrouping in Defence of Minority Rights: Kymlicka's Multicultural Citizenship' (1996) 34 Osgoode Hall Law Journal 291, 314–16.
[118] See Manfredi and Kelly, above n 5. For Hogg and Thornton's response, see Peter Hogg and Allison Thornton, 'Reply to "Six Degrees of Dialogue"' (1999) 37 Osgoode Hall Law Journal[529].
[119] Jeffrey Goldsworthy, 'Judicial Review, Legislative Override, and Democracy' in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights:Instruments and Institutions (2003) 263.
[120] It is also a claim that I doubt Waldron would be tempted to make. See Waldron, above n 102, 306 (mechanisms which merely slow down the legislative process need not 'be regarded as an affront to democracy').
[121] Hogg and Thornton, above n 118, 534.
[122] Morton, above n 5, 24.
[123] For an excellent discussion, see Wojciech Sadurski, 'Judicial Review and the Protection of Constitutional Rights' (2002) 22 Oxford Journal of Legal Studies 275.
[124] How strongly they wish to make such a claim is not entirely clear. In their original article they claim that the democratic objections to the Charter 'cannot be sustained', even though much of the language they use throughout their article is more circumspect, see Hogg and Bushell, above n 3. Hogg and Thornton, above n 118, 534, concede that that original conclusion was probably too strongly stated — though those who might persist in making democratic objections are said to take an 'extreme position' and the authors reassert the proposition that no major democratic objectives have been defeated by reason of Charter review. What follows seeks to explain why their original conclusion needs to be substantially softened.
[125] Peter Russell, 'Political Purposes of the Canadian Charter of Rights and Freedoms' (1983) 61 Canadian Bar Review 30, 52.
[126] For elaboration, see Goldsworthy, above n 119.
[127] Adrian Vermeule, 'Judicial Review and Institutional Choice' (2002) 43 William and Mary LawReview 1557, 1558.
[128] See ibid 1564; Goldsworthy, above n 119.
[129] Peter Cane, 'Understanding Judicial Review and its Impact' in Marc Hertogh and Simon Halliday (eds), Judicial Review and Bureaucratic Impact (2004) (forthcoming).
[130] One response to those, like Waldron and Ely, who say that judicial review will always score lower than decision-making by legislatures is to insist upon a different comparison,namely, that between legislatures acting alone and legislatures acting in combination with judicial review. See Leslie Green, 'Law's Rule' (1986) 24 Osgoode Hall Law Journal 1023, 1040.
[131] See Goldsworthy, above n 119.
[132] Thanks to David Wiseman for raising this issue with me. See also Roach, 'Constitutional and Common Law Dialogues', above n 5, 521.
[133] See also Peter Hogg, Constitutional Law of Canada (3rd ed, 1992) 240–2. Interestingly, 'none of the [Canadian] provinces now has an upper house': at 240 n 36.
[134] This point would not be relevant in Australian jurisdictions, such as the Australian Capital Territory ('ACT'), which have a unicameral legislature. The ACT Legislative Assembly has recently enacted a statutory bill of rights, the Human Rights Act 2004 (ACT). See generally ACT Bill of Rights Committee, Towards An ACT Human Rights Act (May 2003). However, in a jurisdiction as small as the ACT one might have other concerns about whether any positive 'dialogue' over rights would flourish, see Leighton McDonald, 'New Directions in the Australian Bill of Rights Debate' [2004] Public Law 22.
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