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A Hybrid-Approach to Protect Rights? An Argument in Favour of Supplementing Canadian Judicial Review with Australia's Model of Parliamentary Scrutiny

Published online by Cambridge University Press:  24 January 2025

Janet L Hiebert
Janet L Hiebert*
Affiliation:
Political Studies, Queen's University, Canada
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Extract

One of the difficult issues liberal democracies face is how to distinguish allowable government action from the protected sphere of human activity. Rights have become increasingly important as a critical standard for evaluating the justification of policy. Yet no consensus exists on the best institutional methods for defining the scope of rights or for ensuring that rights are adequately and appropriately considered in the formulation of policy. Since the Second World War, many countries have shown an increasing interest in utilising a bill of rights against which to evaluate state action. Even parliamentary systems, founded on Dicey's precepts that the rule of law and parliamentary sovereignty are a superior way for respecting rights, have departed from, or have been pressured to alter, this institutional framework.

However, a bill of rights, which accords a more authoritative role for judges in resolving citizen-state conflicts, is not without its critics. Proposals for bills of rights attract a wide range of concerns that judicial review of codified rights will reify rights, distort the way political issues are dealt with, assign priority to a different range of values, and result in elected officials reneging on their political responsibility to undertake controversial political decisions.

Type
Research Article
Information
Federal Law Review , Volume 26 , Issue 1 , March 1998 , pp. 115 - 138
Copyright
Copyright © 1998 The Australian National University

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Footnotes

I am grateful to Queen's University for its contribution towards funding this research. I would like to thank members, legal advisors, and past and present secretaries of the Senate Standing Committee for the Scrutiny of Bills in Canberra, the Scrutiny of Acts and Regulations Committee of Victoria, and the Scrutiny of Legislation Committee in Queensland for their generosity and time in meeting with me in Canberra, Melbourne and Brisbane in June and July 1996. I am particularly indebted to Victor Perton whose confidence in parliamentary scrutiny as a model for rights protection first stimulated my interest in this subject. I have enjoyed and benefited from our many exchanges, at times spirited, about the scope of rights and the relative strengths and weaknesses of a bill of rights.

References

1 Dicey, A V, Introduction to the Law of the Constitution (1967)Google Scholar.

2 Hutchinson, A C Monahan, P J, “Law,Politics,and the Critical Legal Scholars:The Unfolding Drama of American Legal Thought”(1984)36 Stanford Law Review 199 at 206CrossRefGoogle Scholar.

3 The Commonwealth Committee's terms of reference here does not include the word “administrative”but instead refers only to “non-reviewable decisions”.In addition,the terms of reference for both Committees include inappropriately delegatinglegislative power and insufficiently subjecting the exercise of legislative power to parliamentary scrutiny.The Victorian Committee has additional responsibilities relating to its own constitution,and to the jurisdiction of the Supreme Court.It also is charged with scrutinising subordinate legislation or to review any Act referred to the Committee.A separate Commonwealth committee,established in 1931,scrutinises subordinate legislation.

4 Fundamental legislative principles are described as “the principles relating to legislation that underlie a parliamentary democracy based on the rule of law”.The principles include requiring that legislation has sufficient regard to rights and liberties ofindividuals and the institution of Parliament.Legislative Standards Act 1992 (Qld),s 4(1).

5 Dworkin, R, Taking Rights Seriously (1977) at 269Google Scholar.See also Dworkin, R,“Liberalism”in S Hampshire (ed), Public and Private Morality (1978)at 136CrossRefGoogle Scholar.

6 Dworkin, R, Law's Empire (1986)at 381Google Scholar.

7 Dworkin, R, Taking Rights Seriously (1977)at 149Google Scholar.

8 Dworkin, R, A Matter of Principle (1985) at 11-13CrossRefGoogle Scholar.

9 Russell, P H, “Political Purposes of the Canadian Charter,”(1983) 61 Canadian Bar Review 30 at 44-45Google Scholar.

10 Space does not permit a full discussion of the Supreme Court's jurisprudence on how to assess whether infringements on rights are reasonable.For a fuller discussion see Hiebert, J L, Limiting Rights:The Dilemma of Judicial Review (1996)CrossRefGoogle Scholar.

11 The Court's general approach to assessing the reasonableness of legislation was provided for in R v Oakes [1986] 1 SCR 103.

12 Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927 at 989-990 per Dickson CJ for the majority.

13 Lamer CJ stated,on the issue of whether Parliament should be required to choose the perfect or best possible legislative scheme,that the Charter “does not require Parliament to 'roll the dice' in its effort to achieve 'pressing and substantial' objectives in order to adopt the absolutely least intrusive provision.” R v Chaulk [1990] 3 SCR 1303 at 1343(emphasis in original).

14 Ibid at 1343.

15 Reference re ss 193 and 195.l(l)(c) of the Criminal Code (Man) [1990] 1 SCR 1123 at 1138 per Dickson CJ for the majority.

16 For a thorough discussion of American jurisprudence involving free speech cases see Greenawalt, K, Fighting Words:Individuals,Communities,and Liberties of Speech (1995)CrossRefGoogle Scholar.See also Baker, C E, Human Liberty and Freedom of Speech (1989)Google Scholar.

17 Department of Justice Act, RSC 1985,c J-2, s 4 and the Statutory Instruments Act,RS 1985,c S-22,s 3 as amended by the Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act, RS1985(1st Supp),c 31,ss 93-94.

18 Monahan, P J Finkelstein, M, “The Charter of Rights and Public Policy in Canada”in P J Monahan and M Finkelstein(eds), The Impact of the Charter on the Public Policy Process (1993) at 10Google Scholar.

19 For a discussion of the problems with executive-based scrutiny see Kinley, D, The European Convention on Human Rights:Compliance without Incorporation (1993)Google Scholar.

20 Patrick Monahan and Marie Finkelstein suggest that the common interest of Canadian governments to consider rights issues early in the policy process has increased the role and status of attorneys general and their legal advisors to the point that, in many governments,they now constitute a new central agency. P J Monahan and M Finkelstein, above n 18 at 9-35.

21 D Kinley,above n 19 at 103.

22 Russell, P H,“A Democratic Approach to Civil Liberties”(1969) 19 U Toronto Law Journal (1969) 109 at 125-126Google Scholar.

23 J L Hiebert, above n 10 at 152.

24 A particularly notable exception was the narrow majority decision in RJR-MacDonald Inc v Canada (Attorney General) [1995]3 SCR 199 which struck down regulations on tobacco advertising for violating freedom of expression in a manner that was not a reasonable limit under s 1 of the Charter.

25 Franks, C E S, The Parliament of Canada (1989) at 14-15 and 31Google Scholar.

26 Ibid at 31.

27 For a discussion of the role rights played in structuring particular political debates see the following articles by the author, “Debating Policy: The Effects of Rights Talk”in F L Seidle, Equity & Community:The Charter, Interest Advocacy and Representation (1993);and “Political Approaches to Reasonable Limits”in P J Monahan and M Finkelstein, above n 18.

28 Dennis Pearce,former legal counsel for the Senate Standing Committee for the Scrutiny of Bills,transcript of proceedings of “Ten Years of Scrutiny”,a seminar to mark the tenth anniversary of the Senate Standing Committee for the Scrutiny of Bills,Canberra,25 November 1991,7.

29 Victor Perton,interview with author,4 July 1996,Melbourne.

30 Interview with author,Melbourne,3 July 1996.

31 Human Rights and Equal Opportunity Commission v Secretary, Department of Immigration and Multicultural Affairs (1996) 67 FCR 83.

32 Ibid at 99.

33 Commonwealth Parliament Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 1996 at 100.

34 Senator Short,Sen Deb 1996, No 5 at 1934-1935.

35 Philp Ruddock, Minister for Immigration and Multicultural Affairs, Media Release,19 June 1996.

36 Human Rights Commissioner Chris Sidoti criticised the bill as “unjust,unfair and un Australian”for its intent of holding people in complete isolation,without access to any information about their rights and without scrutiny even by official bodies established by Parliament.He argued that the Australian parliament should not allow the Department of Immigration “to change the law every timeit is found to [be] breaking it''.Human Rights and Equal Opportunity Commission,Media release,20 June 1996.

37 Alert Digest No 4,26 June 1996 at 15.

38 Commonwealth Parliament Senate Standing Committee for the Scrutiny of Bills,Sixth Report of 1996 at 95.

39 Alert Digest No 4, 26 June 1996 at 16.

40 Ibid.

41 Ibid at 13.

42 Commonwealth Parliament Senate Standing Committee for the Scrutiny of Bills,Sixth Report of 1996 at 91-93 and 98-100.

43 Alert Digest No 4,26 June 1996 at 17.

44 Senator Short,Liberal,Sen Deb 1996, No 6 at 2351.

45 Senator Carr,Labor,ibid at 2352.

46 Senator Spindler,Democrat,ibid at 2352-2353.

47 Senator Barney Cooney,Labor,interview with author,Melbourne,3 July 1996.

48 Senator Cooney,Sen Deb 1996, No 6 at 2353.

49 Senator Spindler,Democrat,ibid at 2561-2563.

50 Senator Bell,Democrat,ibid at 2555-2556.

51 Senator Spindler,ibid at 2561.

52 Ibid at 2563.

53 Ibid at 2566-2567.

54 Senator Cooney,Sen Deb 1996, No 6 at 2590.

55 Peter Reith,Liberal,H Reps Deb 1996, No 6 at 3186.

56 Commonwealth Parliament Senate Legal and Constitutional Legislation Committee,Migration Legislation Amendment Bill(No 2)1996 at 22.The recommendation that the bill be passed unamended was not unanimous.Senator Spindler offered a dissenting report in which he argued that the Immigration Minister should accept an offer made by the Human Rights Commissioner and the Ombudsman to handle complaints under their respective Acts,for a period of three months,as if the bill had been passed in its present form to allow the government to revise the bill:ibid at 22-23.

57 Senator Ellison,Sen Deb 1996, No 6 at 2355.

58 See discussion by PH Russell,above n 9 at 43.