Allan, James --- "Paying for the Comfort of Dogma" [2003] SydLawRw 4; (2003) 25(1) Sydney Law Review 63

Paying For the Comfort of Dogma

JAMES ALLAN[*]

---

There are those who would pay for the comfort of dogma, with the coin of intellectual subjection. (Voltaire)

In a very recent paper of mine I argued strongly against the desirability of any sort of bill of rights for Australia.[1] I argued there that the nature of rights themselves, the provenance that can plausibly be claimed for them, may itself lead us to doubt the wisdom of placing a set of these rights at (or near) the apex of the legal and constitutional system, where of necessity unelected judges would have to give them specific content. I argued too that in the context of the present Australian system the protection of the sort of important human interests that fall under the aegis of rights or of human rights requires no bill of rights. Australia, I urged, is better off without such an instrument, be it constitutionalised or statutory.

Everything that follows in this paper can be understood as arguing for the same conclusion, though on different grounds and from different starting points. In other words, the two papers should be seen as complementary, both serving to reinforce the view that ‘we don’t need any sort of bill of rights here in Australia’.

Let us start this paper by imagining that Australia has just managed (somehow) to adopt a bill of rights. Two immediate, and I will contend related, questions spring to mind. Firstly, what would have been the motivation for adopting it? Secondly, how is it likely to be interpreted? As we shall see, the answers to these questions seem likely to influence one’s assessment of the merits of our imagined recent decision to adopt a bill of rights.

Take the first question first. Justice Antonin Scalia of the United States Supreme Court draws a distinction between amendatory and confirmatory bills of rights.[2] An amendatory bill of rights is ‘not meant to confirm and preserve the past, but to repudiate it’.[3] Scalia gives the example of a guarantee of religious freedom in the bill of rights of the newly formed Federal Republic of Germany or Republic of Italy. Such a guarantee in such a bill of rights is ‘[s]urely... not meant to refer to the pre-existing freedom of religion in Nazi Germany, or Mussolini’s Italy’.[4] We could add to this the further example of the recent South African Constitution, a clearly amendatory document aimed at rolling back the legacies of apartheid.

By contrast, a confirmatory bill of rights is meant to preserve the freedom, liberties and rights believed already to exist. Justice Scalia argues, persuasively in my view, that the American Bill of Rights is an example of a confirmatory bill of rights:

[it] was meant to preserve a state of liberty that was believed already to exist... . That the individual guarantees of the American Constitution have traditionally been regarded as confirmatory rather than amendatory is strikingly demonstrated by the fact that we adopted a constitutional amendment, in 1920, to compel all States to give women the vote — even though the Constitution already contained... a requirement that the States accord all persons equal protection of the laws.[5]

The New Zealand Bill of Rights Act 1990 is another example of a bill of rights — this one statutory — that was meant to be confirmatory. Indeed, this Act proved remarkably difficult to get through the New Zealand Parliament and was only enacted after being significantly watered down and after the then Prime Minister’s assurances that it would be ‘a Parliamentary Bill of Rights’[6] and that:

the Bill creates no new legal remedies for courts to grant. The judges will continue to have the same legal remedies as they have now, irrespective of whether the Bill of Rights is an issue.[7]

On which side of the divide would our imagined Australian bill of rights fall? That is the gist of the first question posed above. Would it have been adopted as an amendatory or confirmatory bill of rights?

It seems to me that in the foreseeable future our imagined scenario of an Australian bill of rights will only ever come to pass if it is sold to the public as a confirmatory instrument. Australia is not one of the ex-communist eastern European countries hoping to shuffle off the coils of a widely despised political system; Australia is not South Africa with a legacy of apartheid. Instead, Australia is (and has been for over a century) one of the most democratic countries on the planet. Its voting systems are good; its compulsory voting regime enhances equality of input;[8] constitutional amendments cannot bypass the electors, as they can (and do) in Canada and the US, but are subject to the direct say of the people voting in a referendum;[9] the legal protection of rights, though not constitutionalised, is widespread, observed not least in numerous anti-discrimination statutes; even on more subjective grounds such as best places in the world to live, Australia scores extremely highly — as is evidenced by the 2001 UN Human Development Report which ranked Australia the second best place in the world to live behind only Norway.[10]

The point is that the preponderance of Australians is well off and knows it. A bill of rights sold as an amendatory instrument, as a basis for repudiating the past, would (in my view) have next to no chance of being adopted or enacted in Australia.[11] So whatever the basis for most other countries these days opting to have one, were Australia to join the recent worldwide trend and opt for some sort of bill of rights it would certainly be intended to be on a confirmatory basis, to confirm and preserve the freedoms and rights believed already to exist.

How then, returning to the second question I posed above, would our imagined Australian bill of rights be likely to be interpreted? For all those people who are undecided about the desirability of a bill of rights, the answer to this question may well be decisive. Accordingly, allow me here to digress for a moment to remind the reader about the purpose of constitutionalising rules and rights.[12] Jeremy Waldron is blunt. ‘[T]he aim of constitutionalising an issue is to remove it from the ordinary discourse of politics.’[13] Hence a constitutionalised bill of rights is supposed to lock in, and remove from the realm of political debate, negotiation and compromise, certain articulated rights (or their analytical equivalents rules). Once locked in, if we want to change or alter these rights and rules, we will have to win approval in the much more difficult process of a constitutional amendment. That, at any rate, is the theory.

In practice, however, how is Australia’s mooted bill of rights likely to be interpreted? There is clearly the possibility that with our mooted bill of rights in place the Australian judiciary will play a significantly greater role in social policy-making than at present. Even a former Chief Justice of Australia, writing extra-judicially, concedes this point:

If the exercise of political power is to be subjected to a Bill of Rights, there is no institution to which the administration of those provisions can be entrusted save the Courts. The Courts ... would be constrained to base their decisions on political considerations. This is foreign to our present conception of judicial function ... . If the Courts are to decide issues on their political and social merits, the Courts will have to be given ... ‘a deliberate push away from the cautious and highly deferential posture they exhibited’ in cases governed by Statute law ... . A Bill of Rights, drawn in open-textured terms, necessarily requires individual human rights to be defined with a content specific to the case in hand ... . This is the stuff of politics, but a Bill of Rights purports to convert political into legal debate, and to judicialize questions of politics and morality.[14]

How, though, can we predict how far the judges are likely to go in giving our new bill of rights ‘content specific to the case in hand’? One way to predict how this conjectured bill of rights is likely to be interpreted (and so, concomitantly, to see the constraints this instrument will — or will not — place on the judges) is to look around the world at countries with similar legal systems, traditions and constitutional structures — say New Zealand, Canada and the UK — to see what the judges have done there. Another, more homegrown, way is to consider how judges here in Australia have already dealt with constitutional rights.

This latter indicia I refer to is, of course, the so-called ‘implied rights’ cases that began a decade ago. Recall that in Australian Capital Television v Commonwealth[15] the judges were acting in response to 1991 Commonwealth legislation limiting access to television and radio for all political advertising, including third party political advertising — or more accurately put, banning all broadcasting of advertisements containing political matter during an election campaign in favour of requiring broadcasters to provide free broadcast time to qualifying candidates and parties. The Australian High Court stepped in to strike down the relevant legislation on the basis of its being an abridgement of a freedom of communication which the judges held, for the first time ever, to be inherent and so entrenched in the Australian constitution.[16]

As an aside, it is important to notice that what the judges did here was not uncontentiously desirable or obviously a good thing. In particular, if one falls into either:

(a) the camp that believes that rationing access to television campaigning on a basis other than wealth tends to further egalitarian concerns and so the substantive right to participate in decision-making; or

(b) the camp that thinks that when there are potentially conflicting values at stake, say the need for free and open dialogue in a representative democracy as against the need to keep a modicum of equality of input in the democratic process, it is the people through their elected representatives who have the right to decide between them;

then the intrusion of the judiciary into this area of campaign finance regulation will be seen very much as a negative, not positive, initiative. In other words, far from adding value, the judges will be seen to have made things worse — worse in terms of rights.

Returning, however, to the ‘implied rights’ cases more generally, a very brief précis of what the courts have done may throw some light on how our conjectured bill of rights is likely to be interpreted. In essence, I take the High Court to have created (or if one takes a different view than I of what was done, then it has discovered) what amounts to a limited right to freedom of political communication. The scope of the right or freedom first waxed,[17] then waned to the point of seeming vulnerability,[18] then was confined within boundaries that confirm its existence but make clear it does not confer personal rights on individuals and can lose out to a law that is reasonably appropriate and adapted to serve a legitimate end.[19]

In my opinion, these cases show that judges, when inclined, can travel a long way towards achieving the rights-based outcomes they like with little or no textual support for that outcome. More to the point of this paper, though, is that whatever the Australian judiciary might do using the vehicle of implied rights, they could do much, much more with a set of explicit rights laid down in some sort of bill of rights. They could, I repeat, use a text which lays down explicitly proclaimed individual rights (usually in vague, amorphous but emotively attractive terms) to get their own way against the elected branches of government much more easily than they could ever use the ‘implied rights’ vehicle.[20] They could, but would they?

My opinion is unequivocal. The likelihood is overwhelming that our imagined bill of rights would be interpreted by the Australian judges so as to give those same judges a significant increase in power vis-à-vis the elected branches of government. In other words, they could and they would. Of course, what was being done would not be articulated in terms of power. The language of rights would be used virtually exclusively. It might well begin with our being reminded of Lord Wilberforce’s oft-cited dictum that bills of rights:

call for a generous interpretation avoiding what has been called ‘the austerity of tabulated legalism’, suitable to give the individuals the full measure of the fundamental rights and freedoms referred to.[21]

Or to stop speculating for a moment, and to focus on a real life example, take New Zealand. Recall from above that New Zealand’s bill of rights was statutory. In fact, the bill of rights ultimately enacted in New Zealand was arguably on its face — and in terms of its legislative history — the most enervated conceivable.[22] And yet in the very first Bill of Rights Act case to reach the Court of Appeal[23] Cooke P (speaking for the Court) suggested that, due to the bill of rights, there was ‘force in the argument that, to give full effect to the rights..., [a particular statutory provision with a long-standing interpretation]... should now receive a wider interpretation than has prevailed hitherto’.[24]

The same judge, shortly thereafter, said of this enervated, statutory bill of rights:

[it] is not to be construed narrowly or technically.[25]
The correct judicial response can only be normally to give it primacy, subject to the clear provisions of other legislation.[26]
The [Bill of Rights] Act requires development of the law where necessary. Such a measure is not to be approached as if it did no more than preserve the status quo... . it is asking no more than that we in New Zealand try to live up to international standards or targets and to keep pace with civilisation.[27]

And while not all the top New Zealand judges were as manifestly keen as Cooke P to use the new bill of rights to bring about changes they thought desirable, it is nonetheless true that in fewer than 10 years the judiciary there had transformed what looked like — and had been intended to be — an enervated, statutory instrument into one that allowed them to make declarations of inconsistency (on no statutory basis whatsoever), to read down competing statutes, to undertake potentially sweeping abridging enquiries, and to create an ad hoc Bill of Rights Act cause of action subjecting the Crown to potentially unlimited liability for its breach (in the face of a specific earlier amendment and assurances in the House to prevent this).[28]

The evidence from Canada of how judges will treat a bill of rights in an activist manner is, if anything, even plainer.[29] Grant Huscroft, focusing on Canada and New Zealand, asserts that ‘[t]he willingness of the courts to adopt “generous interpretations” often negates the intention to limit the scope of rights at the drafting stage... . Nothing prevents natural justice or any other term with a well-understood meaning from being interpreted more expansively if the courts are disposed to doing so.’[30] This assertion seems to be holding true even of the jurisprudence now emerging from the UK’s recently come into force Human Rights Act.[31]

Accordingly, it would appear safe to predict that our imagined bill of rights would — sooner or later, but probably sooner — be interpreted by the Australian judges in an expansive, broad, generous, non-austere way, in order (we might be told) ‘to keep pace with civilisation’.[32] The willingness of Australian judges in the past to ‘find’ (or to ‘tease out’) rights as an implication of a text that nowhere specifically sets out, refers to or in any way mentions them is one ground for thinking this. The evidence from comparable countries such as Canada, the UK and New Zealand is another. And we can all see that this sort of approach to interpretation leaves the judges much less constrained in achieving the outcomes they desire. In fact, Tom Campbell makes the case in detail of just how far judges can travel simply by using statutory (not even constitutionalised) bill of rights-based interpretive techniques.[33]

Nor, perhaps, should this be at all surprising. Think back to Justice Scalia’s distinction between an amendatory and confirmatory bill of rights. How does one interpret the former? As Scalia says, it cannot be on the basis of how the right or freedom was treated previously. It is just such treatment, after all, that the introduction of the amendatory bill of rights was seeking to repudiate.

There is no way to interpret [an amendatory bill of rights’ provisions, say freedom of religion] except as an appeal – not to traditional national or international legal concepts – but to some Platonic ideal of freedom of religion that judges will ultimately have to invent.[34]

This sort of bill of rights, therefore, appears to place relatively few constraints on the judiciary, at least initially until a body of case law can be built up and until judges become reluctant to stray from it.

Unless the judge is bound to give content to these generalities by referring to pre-existing practice, he is left to govern society on the basis of his own philosophy, his own biases, or his own worldview... . The judge is left to make up those details as he sees fit... . There are no answers to these questions — or at least no answers that courts (that is to say, committees of lawyers) can figure out through their accustomed analytical processes... . But if past practice does not matter, how am I to decide the point? Has Harvard Law School prepared me for this? Of course not.[35]

Can anything more, in the way of constraints, be hoped for from a confirmatory bill of rights? If so, there would still be powerful democratic objections to the adoption of a bill of rights,[36] but at least we might anticipate that judges would feel more limited in what they can and cannot do. They would, perhaps, feel limited by past practice and by the intentions of the enactors or adopters. There would then be an external standard to use to give the articulated rights — rights expressed overwhelmingly in indeterminate and amorphous terms — a ‘content specific to the case at hand’.[37]

Alas, this hope too may prove ephemeral. Many judges, certainly what to me seems to be a majority in most common law jurisdictions today — though Bill of Rights lacking Australia, or at least the current High Court, is largely an exception — like to think of their constitutions, constitutionalised bills of rights and quasi-constititionalised (ie, statutory) bills of rights as ‘living trees’ or ‘living organisms’. They want to have the freedom to enable the terms used in these documents to keep pace with a changing society’s changing values (or rather with their view of what those values are). They deplore ‘the dead hand of the past’ and deride constraints stemming from the enactors’ or adopters’ intentions as a form of ‘ancestor worship’.[38] Huscroft sums up this prevalent judicial attitude in these terms:

[A]rguments that a bill of rights means what it says, or what it was intended to mean, have become the stuff of parody — ‘ancestor worship’ to some.[39]

Justice Scalia is more scathing:

The argument often made in defence of a bill of rights untethered to original understandings and susceptible of judicial evolution is that a constitution, after all, is meant to endure for many years and hence must be flexible. It is a ‘living organism’ that must ‘grow’ with the society that it governs... . [Of course] a constitution is not an organism. It is a democratically adopted law, and should... [not be interpreted] to commit the future of society to management by an unelected judiciary. And if you believe that the enthusiasts of a ‘living constitution’ are seeking to bring us flexibility, you are wrong.[40]

In either version, however, the point is the same. A constitutionalised or quasi-constitutionalised bill of rights will lock in everyone except the judges (and less directly, the lawyers). Gone from the realm of acceptable political debate and negotiation will be any questioning or rejecting of the case by case specific interpretations these judges have given to the enumerated rights. We, the people, will all be locked in; the judges, with their ‘living tree’ interpretations, will not be; to over-rule them we will have to resort to a constitutional amendment or repeal of a statute built up to be somehow on a par with the constitution; they can change the effect of the bill of rights any time they like simply by changing their interpretation of the unchanged words.[41] The fact our imagined bill of rights was sold as a confirmatory document will not prevent this.

I surmised earlier in this paper that for some people who are undecided about the desirability of a bill of rights, the probable judicial approach to interpreting it might be the decisive factor. In other words, for some (perhaps many) people there will be a connection between the motivation for wanting (or not wanting) a bill of rights and the likely judicial approach to interpreting it. If that be true, if support for a bill of rights tends to decline, the more judges are seen to feel free to treat it as a living organism granting them (and only them) an expansive licence to make legislation conform to their particular biases and worldviews, then our imagined Australian bill of rights is becoming distinctly more imaginary. My guess is that it will be much harder for advocates of an Australian bill of rights to realise their ambition if people are aware of how such a document (be it constitutionalised or statutory) is likely to be used and interpreted by the judiciary.

Another way of putting the same hypothesis is to assert that it is easier to sell a bill of rights than it is to sell any form of strong judicial review. In order to have any prospect of succeeding, therefore, it is wise to keep concealed Grant Huscroft’s observations that:

Far from being a mere corollary of the importance of protecting rights, judicial review is the raison d’être for modern bills of rights.... So [a bill of rights] is not simply a matter of empowering the courts to protect rights; it is about empowering the courts to determine what rights we have....Not only is it impossible to limit the scope of judicial review but, as I have suggested, it is contrary to the purpose of modern bills of rights in any event.[42]

Obversely, those, like me, who are opposed to bills of rights in countries — like Australia — with strong democratic traditions and credentials need to try to make the link and raison d’être apparent.

Conclusion

In this paper I began by imagining that Australia had just managed to adopt a bill of rights. I then argued that it would have been sold to the public on a confirmatory basis but that it would nevertheless be interpreted expansively, liberally and generously. This would plainly give those same judges doing the interpreting a significantly greater role in social policy-making in Australia. I went on to venture the opinion that a widespread awareness of these effects would make it much more difficult for advocates of an Australian bill of rights to realise their ambition. The imagined would slip further into the realm of the fanciful and chimerical.

That is what I have done in this paper. What I have not done is to say why giving judges this power would be a bad thing. But it is evident I happen to believe that in the context of a moderately well functioning democracy, and so a fortiori in Australia, it is a bad thing. And I have argued this belief at length elsewhere.[43] I will not repeat the arguments here.

What I will do to conclude is to return to the title of this paper. Look around the law schools of Canada, New Zealand, the UK and Australia and ask yourself whether or not the desirability of some sort of bill of rights has become elevated to the level of taken-for-granted, indisputable, unimpeachable dogma. It seems to me that, with exceptions here and there, it has. The slant taken towards bills of rights by law societies and other bodies representing lawyers is much the same. And yet this faith in these instruments, and so, implicitly, in judges, co-exists with an over-the-top cynicism of the motives, ethical stances and moral perspicacity of lawyers. The latter are unduly distrusted and yet the moment one of them is appointed to the bench he or she is unduly trusted to decide where to draw lines (in contentious matters of social policy-making) for the rest of us. The juxtaposition of this faith, that judges do a better job giving specific content to rights than we and our elected representatives can and do, with the cynicism concerning the motives and actions of lawyers generally is jarring.

Be that as it may, and whatever the causes for this misplaced faith and cynicism, I think it crucial to challenge the dogma surrounding bills of rights. In a well-established democracy like Australia, important rights, important human interests, can be (and generally are) as well — if not better — protected without a bill of rights. There is no good reason in Australia to pay for the comfort of dogma.

---

[*] Faculty of Law, University of Otago. The author wishes to thank Tom Campbell and Grant Huscroft for their comments and suggestions. Thanks are due, too, to the referee of this journal.

[1] See my chapter, James Allan, ‘A Defence of the Status Quo’ in Tom Campbell, Jeffrey Goldsworthy & Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (forthcoming, 2003). In that chapter I reviewed briefly the notable features of the present Australian constitutional structure (from voting systems to bicameralism to constitutional amendment procedures), considered the singularity of lacking any sort of bill of rights, examined the nature of rights themselves and finished by weighing the cases for and against any sort of bill of rights. I concluded the latter is more compelling.

[2] See Antonin Scalia, ‘The Bill of Rights: Confirmation of Extant Freedoms or Invitation to Judicial Creation?’ in Grant Huscroft & Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002).

[3] Id at 20.

[4] Ibid.

[5] Id at 20, 21.

[6] (1989) 502 New Zealand Parliamentary Debates 13038 (Rt Hon Geoffrey Palmer PM moving introduction of the Bill).

[7] (1990) 510 New Zealand Parliamentary Debates 3449, 3450 (Rt Hon Geoffrey Palmer PM). See too some of Geoffrey Palmer’s other statements to the House detailed in JA Smillie, ‘The Allure of “Rights Talk”; Baigent’s Case in the Court of Appeal’ [1994] OtaLawRw 3; (1994) 8 Otago Law Review 188. Smillie’s article also gives some history of the passage of the Bill of Rights Act as does Paul Rishworth’s ‘The Birth and Rebirth of the Bill of Rights’ in Grant Huscroft & Paul Rishworth (eds), Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (1995).

[8] Compulsory voting was first applied to an Australian Commonwealth election in 1925 after being enacted the previous year through a private member’s bill. Queensland introduced it in time for its 1915 general election. For detail on Australian compulsory voting see Colin Hughes, ‘Compulsory Voting’ (1966) 1 Politics 81 and Neil Gow, ‘The Introduction of Compulsory Voting in the Australian Commonwealth’ (1971) 6 Politics 201.

[9] To win a referendum the amendment needs (i) a majority of electors in a majority of States and (ii) a majority of all electors. (See section 128 of the Commonwealth of Australia Constitution Act 1900 (UK).) In other words, a broad consensus of the political elite is not enough. Relatedly, the fact that only 8 of 44 Constitution altering questions have succeeded in Australia does not prove the s128 referendum is procedurally onerous; rather, it proves the majority is usually not in favour. This is made clear by the fact that in only 4 of the 36 failed referenda has (ii) been satisfied but not (i). Almost all s128 referenda fail because they cannot gain the support of a majority of Australians (witness, the question on republicanism). Onerous procedural hurdles should be made of sterner stuff.

[10] This report built an index based on life expectancy, literacy, educational attainment and GDP per capita. Of course I do not mean to suggest that such a subjective, rather arbitrary measuring index spews out objectively right ranked answers of best places to live. I would, however, concede that for most of us there is some correlation between a weighted average of those four things and the desirability of living in that country. And lest the reader think I am blithely overlooking the historical treatment of Aborigines, in my complementary paper, Allan, ‘A Defence of the Status Quo’, above n1, I argue that as bad as the treatment has been, a bill of rights (one set in the relevant historical context of 30 or 50 or 100 years ago) would not have improved things.

[11] Recall, as a further indication that this is so, that the two 1988 referenda proposals seeking to insert such relatively weak rights guarantees as religious freedom and the right to vote failed not only to win a simple majority in the Commonwealth as a whole, they each failed to carry in any State.

[12] It is worth remembering too that analytically speaking the existence of a right is equivalent to the existence of a rule. To say one has a right is to say that ‘others must’ do or refrain from doing something — in other words that there is a rule laying down this right (together with its correlating duty on some other or group of others). The claimed rule may, of course, be legal or non-legal. I elaborate on rights in James Allan, A Sceptical Theory of Morality and Law (1998) and in ‘Rights, Paternalism, Constitutions and Judges’, Litigating Rights above n2.

[13] Jeremy Waldron, ‘Taking Group Rights Carefully’, in Litigating Rights above n2 at 206.

[14] Sir Gerard Brennan, ‘The Impact of a Bill of Rights on the Role of the Judiciary: An Australian Perspective’ in P Alston (ed), Promoting Human Rights through Bills of Rights (1999) at 455, 456, 458.

[15] [1992] HCA 45; (1992) 177 CLR 106.

[16] Here, let me just qualify the main text by noting that a more circumscribed characterisation might be more apt, say the ‘limited freedom of communication between the people concerning political matters in order to enable them to exercise a free and informed electoral choice’. See too Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 120 where Mason CJ, Toohey and Gaudron JJ, the activist judges be it noted, say ‘In those [earlier] cases, a majority of the court distilled from the provisions and structure of the Constitution, particularly from the concept of representative government which is enshrined in the Constitution, an implication of freedom of communication. That implication does not extend to freedom of expression generally.’ (emphasis mine) See too Lange v ABC [1997] HCA 25; (1997) 145 ALR 96 at 107 (‘Those sections [and the implications drawn] do not confer personal rights on individuals.’) and at 108 (‘The freedom of communication...operates as a restriction on legislative power.’). Note, too, that having ‘discovered’ this right, there was no necessity that the judges would strike down the law. Compare the Canadian response in the area of defamation law in Hill v Church of Scientology of Toronto (1995) 126 DLR (4th) 129.

[17] These are the early cases of Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 and Nationwide New Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1 moving on through to Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104.

[18] In McGinty v Western Australia [1996] HCA 48; (1996) 134 ALR 289 and Langer v Commonwealth [1996] HCA 43; (1996) 134 ALR 400 the majority of a by now somewhat differently constituted High Court declined to extend the implied right to cover equality of voting power. Indeed McHugh and Gummow JJ, rejected the reasoning of the earlier cases that had created the implied right (see pages 348 and 391) and Dawson J came close to doing the same (see pages 304–305).

[19] See Lange v ABC [1997] HCA 25; (1997) 145 ALR 96. Notice that although the implied right was bracketed, it was not renounced. Justices Dawson, McHugh and Gummow, the sceptics, all joined in the judgment of the Court here in Lange accepting the existence of the implied freedom.

[20] For my arguments supporting this claim see Allan, ‘A Defence of the Status Quo’ above n1.

[21] Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319, 328 (PC).

[22] For my full views on the New Zealand Bill of Rights Act 1990 see James Allan, ‘Turning Clark Kent into Superman: the New Zealand Bill of Rights Act 1990’ [2000] OtaLawRw 3; (2000) 9 Otago Law Review 613; James Allan, ‘The Effect of a Statutory Bill of Rights Act Where Parliament is Sovereign: The Lesson from New Zealand’ in Campbell, Ewing & Tomkins (eds), Sceptical Essays on the Human Rights Act 1998 (2001); and ‘Take Heed Australia — A Statutory Bill of Rights and Its Inflationary Effect’ [2001] DeakinLawRw 17; (2001) 6 Deakin Law Review 322. For our purposes just note that the specially-inserted-to-enable-passage section 4 contains a provision which, in effect, says ‘all other inconsistent statutes over-ride the Bill of Rights Act rights’.

[23] Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439.

[24] Id at 441.

[25] R v Butcher [1991] NZCA 135; [1992] 2 NZLR 257 at 264.

[26] Id at 267.

[27] Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260 at 270–271 (hereinafter Ministry of Transport) (italics mine).

[28] See Allan, above n22 for more detail.

[29] See FL Morton & Rainer Knopf, The Charter Revolution and the Court Party (2000). See too Chris Manfredi, Judicial Power and the Charter (2nd edn, 2000).

[30] Grant Huscroft, ‘Rights, Bills of Rights, and the Role of Courts and Legislatures’, in Litigating Rights, above n2 at 3–4.

[31] See Keith Ewing, ‘The Case for Social Rights’ in Protecting Human Rights: Instruments and Institutions, above n1 and Sceptical Essays on the Human Rights Act 1998, above n22, and Adam Tomkins, ‘In Defence of the Political Constitution’ (2002) 22 Oxford Journal of Legal Studies 157, especially at 161. See too Tomkins’ defence of legislators over judges, id at 169.

[32] See the main text to Ministry of Transport, above n27.

[33] See Tom Campbell, ‘Incorporation Through Interpretation’ in Sceptical Essays on the Human Rights Act 1998, above n22.

[34] Scalia, above n2 at 20.

[35] Id at 23–24.

[36] For the best contemporary critique of strong judicial review under a bill of rights see Jeremy Waldron, Law and Disagreement (1999). Waldron there considers and rejects all of the best-known arguments in favour of strong judicial review.

[37] See the main text to Brennan, above n14.

[38] Of course, not all Australian judges stand out against this larger trend. See Justice Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ (2000) 24 MULR at 1. But see too the powerful reply by Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ (2000) 24 MULR at 677. ‘Whenever non-originalists trot out the tired old refrain that “we”, “today’s Australians”, “the present generation”, etc, should not be bound by “the dead hand of the past”, they really mean that the judges should not be bound by it. They assume that the judges speak for “us”, and imply that to limit the judges’ ability to change the Constitution by psuedo-interpretation is to limit “our” ability to do so democratically. The assumption is highly questionable, and the implication plainly false.’ (Id at 686–687, internal footnote omitted).

[39] Grant Huscroft, ‘Rights, Bills of Rights and the Role of Courts and Legislatures’, in Litigating Rights above n2 at 4 (internal footnote to Kirby’s article cited in the note above omitted).

[40] Scalia, above n2 at 26 (italics mine).

[41] It is important to stress, yet again, that in my view this reasoning applies equally to a statutory bill of rights. In fact, I have argued at length that statutory bills of rights or over-ride clauses do little, if anything, to diminish the power of judges. (See my writings in nn1, 12 & 22 above.) Jeffrey Goldsworthy, in a review of two of Jeremy Waldron’s books (‘Legislation, Interpretation and Judicial Review’ (2001) 51 U of Toronto L J 75), notes that the Canadian over-ride is phrased such that the legislatures seem to be given a power to over-ride the Charter of Rights itself — not a power to over-rule a particular interpretation given it by the judges, which is what would really be happening. Hence, ‘the legislature cannot ensure that its view will prevail without appearing to override the Charter itself. This makes it vulnerable to the politically lethal objection that the legislature is openly and self-confessedly subverting the Constitution.’ (see at 81) The same point is made by Grant Huscroft, above n30.

[42] Huscroft, above n2 at 4, 6 & 7.

[43] I have done so not just in the complementary paper to this one, Allan, ‘A Defence of the Status Quo’ above n1, but inter alia in the following: James Allan, ‘Oh That I Were Made Judge in the Land’ (2002) 30 Federal Law Review at 561; Allan, ‘Rights, Paternalism, Constitutions and Judges’ in Litigating Rights above n12; the articles cited in n22 above; ‘Bills of Rights and Judicial Power — A Liberal’s Quandary’ (1996) 16 Oxford Journal of Legal Studies 337; and ‘A Bill of Rights Odyssey for Australia: The Sirens are Calling’ [1997] UQLawJl 1; (1997) 19 University of Queensland Law Journal 171 (co-written with Richard Cullen). And of course, as I noted in n36 above, Jeremy Waldron makes the most powerful case today against bills of rights.