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From Dialogue to Disagreement in Comparative Rights Constitutionalism

From Dialogue to Disagreement in Comparative Rights Constitutionalism

Author: Scott Stephenson
Publisher: The Federation Press
ISBN: 9781760020675
Published In: September 2016
Format: Hardback
Jurisdiction: Australia ? Disclaimer:
Countri(es) stated herein are used as reference only

HKD 1,197.00

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In recent decades, Australia, Canada, New Zealand and the United Kingdom have enacted bills of rights containing a number of innovative features that distinguish them from the bills of rights found in most other countries. They have consequently challenged judges, legislators and scholars to rethink a number of foundational issues in the field of rights constitutionalism, including the compatibility of rights-based judicial review with democratic self-government (the counter-majoritarian difficulty), the legislature’s role in the protection of rights, and the limits of constitutional design.

This book proposes a new theoretical framework for analysing these issues that moves away from existing approaches that focus on the concept of dialogue. It argues that inquiry should start with the types of disagreement between the three arms of government on rights issues that different forms of rights constitutionalism facilitate. This framework helps us answer three questions about the bills of rights in these four Commonwealth countries. How do they differ from the pre-existing constitutional approaches to the protection of rights? Why, if at all, should we consider the Commonwealth’s approach to rights protection over the more traditional models? What compromises must be struck when adopting a bill of rights of this variety?

Abstract

Acknowledgements

1. Introduction

I. Three questions

II. The Commonwealth’s approach

III. How is multi-stage rights review different?

IV. Why multi-stage rights review?

V. Which normative trade-offs must be made?

VI. Structure of the book

2. The advent of multi-stage rights review

I. Introduction

II. Canada

A. Prelude to the Charter: The Bill of Rights 1960

B. The Canadian Charter of Rights and Freedoms 1982

III. New Zealand

IV. The United Kingdom

V. Australia

VI. Conclusion

3. Framework for comparison

I. Introduction

II. Expounding inter-institutional disagreement

A. Focusing on inter-institutional interaction

B. Focusing on inter-institutional disagreement

C. Why institutions?

D. Why disagreement?

III. Justifying inter-institutional disagreement

A. Incorporating all three institutions of government

B. Incorporating the nuances of the traditional paradigms

C. Emphasising the negative dimensions of multi-stage rights review

D. The case for inter-institutional disagreement

IV. Conclusion

4. The problems with legislative supremacy

I. Introduction

II. Avenues and consequences of indirect inter-institutional disagreement

III. Four sources of indirect inter-institutional disagreement

A. Judicial review of administrative action

B. Statutory interpretation

C. Structural constitutional provisions

D. Implied constitutional rights

IV. Conclusion

5. The problems with judicial supremacy

I. Introduction

II. Direct inter-institutional disagreement

III. The costs of indirect inter-institutional disagreement

IV. Forms of indirect inter-institutional disagreement

A. Context

B. Types

C. Legitimacy

V. Conclusion

6. Facilitating direct inter-institutional disagreement

I. Introduction

II. The characteristics of direct disagreement

A. Stage one: executive review

B. Stage two: legislative committee review

C. Stage three: rights-based judicial review

D. Stage four: legislative override

E. The cumulative effects of multi-stage rights review

F. A culture of justification

G. Reducing the tendency to defer

III. The case for direct disagreement

A. Multiple perspectives and multiple points of public participation

B. Analogous ideas associated with the traditional paradigms

C. Beyond disagreement?

IV. Conclusion

7. Normative trade-offs

I. Introduction

II. Bureaucratic independence

III. Responsible government

IV. Separation of powers

V. The rule of law

VI. Comity

VII. Conclusion

8. The United Kingdom

I. Introduction

II. Executive rights review

A. Practice

B. Evaluation

III. Legislative committee review

A. Practice

B. Evaluation

IV. Rights-based judicial review

A. Practice

B. Evaluation

V. Legislative override

A. Practice

B. Evaluation

9. Canada

I. Introduction

II. Executive rights review

A. Practice

B. Evaluation

III. Rights-based judicial review

A. Practice

B. Evaluation

IV. Legislative override

A. Practice

B. Evaluation

10. New Zealand

I. Introduction

II. Executive rights review

A. Practice

B. Evaluation

III. Rights-based judicial review

A. Practice

B. Evaluation

IV. Legislative override

A. Practice

B. Evaluation

11. Australia

I. Introduction

II. Executive rights review and legislative committee review

A. Practice

B. Evaluation

III. Rights-based judicial review and legislative override

A. Practice

B. Evaluation

12. Conclusion

I. The relevance of context

II. Responsible government

III. The rule of law

IV. The separation of powers

V. The limits of direct disagreement

VI. The next step

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