LAWS1115 Lecture 5

Rights Debate ctd, Judicial Independence, Separation of Judicial Power

Readings for Next Week

  • Clark chapter on judicial review
  • Three pages in Suri’s book 88, 89 … (library’s photocopying it?)

Tushnet

  • Strong form review:
  • Weak form review:
  • Read. Tushnet.
  • Btw. I blame the sugar-low for any sections that are terrible. Terrible as in lack-of-detail terrible.

Waldron

  • Rights can be viewed from a consequential point of view (‘leads to good things’) – not good in itself
    • It can also be viewed as a good in itself
  • Rights based arguments against a bill of rights
    • Argues that if you take rights seriously, the right of rights should be given to everybody in society, unavoidably towards having to resolve these issues democratically (who would often be consequentialists)
  • Strong rights theory (non-consequentialist)
  • People disagree about rights
  • Proceduralist gambit – p. 80
  • Democracy isn’t perfect, but the question really is whether it’s better than every other system.
  • Ulysses analogy – at times, it might be important to protect people from themselves. His wife was called PENELOPE (I kept on thinking of Andromeda and Persephone. But both are WRONG because they're Perseus' and Hades' girls, respectively!)
    • Hand things over to the judges
    • Judges are sober … politicians are drunk (from the ‘here are my keys. Don’t give them back to me because I like drinking while under the influence’ analogy)
  • Sirens’ arguments only works if one side is drunk while the other one is sober
  • The only Australian state that has a BoR is Victoria.
    • Constitutionalised BoR – Canada 1982
    • Statutory BoR – New Zealand 1990
    • Statutory BoR – Hong Kong 1992
    • Constitutionalised BoR – South Australia 1994
    • Statutory BoR – UK 2000
    • Statutory BoR – Victoria 2006
  • Constitutionalised BoR – when a statute is found by judges to be inconsistent with anything in the BoR then the statute is struck down
  • Statutory BoR – cannot invalidate legislation.
    • Operatives
    • In terms of substance, there isn’t much difference between constitutionalised and statutory BoRs.
  • Rather than invalidating legislation, judges may …
    • (1) Reading down provision – ‘So far as it is possible to do … must be interpreted with the enumerated rights’ – s 32 Victoria
  • ‘So far it can … shall’ – NZ
  • Important cases re: Victoria BoR: DAS (follow Ghaidan), Monsilovic (don’t follow Ghaidan)
  • Case in UK: Ghaidan
    • (2) Declaration Power
      • If statute is extremely clear, no ambiguity, but it is not found to be respectin’ our rights, then the court can isse a ‘declarations of inconsistency’. Basically, the satute breaches people’s rights. Parliament doesn’t have to do anything (in theory. In practice, usually parliament gives in. Why? Mostly because it would make them look bad if a declaration says something isn’t rights respecting and they keep it anyway)
      • s 36 in Victoria, s 4 in UK
    • (3) Override
      • Anytime the parliament wants to, it can pass a statute which expressly states that the statute will override the other one.
  • s 31 in Victoria
    • (4) Abridging provision (aka reasonable limit provision) – s 7 in Victoria, s 5 in NZ
      • Parliament can have limits on rights, but they must be reasonable and justifiable in a democratic society
    • (5) Statements of Compatibility – s 28
      • Minister, during reading of the bill, makes a statement of whether or not the new bill is compatible with the BoR. The idea is that the politicians/legislature will consider rights when they are enacting legislation.
  • Act X v CHRR
    • Reasonable limit on rights?
      • Yes … everything is okay. Done.
      • No … then what do we do?
    • Issue a Declaration
    • Reading down – is it possible to give this statute a meaning that is compatible with the BoR?
      • There’s no possible way it could be consistent. What’s the point?