Designing an Australian Bill of Rights: The Normative Trade-offs

Abstract

If Australia were to introduce a bill of rights at the federal level, it is likely that the design and drafting process would devote a great deal of attention to the possible adoption of a ‘dialogue’ model. Among the different constitutional approaches to rights protection, it has become the most popular in Australia and its closest constitutional relatives in recent decades. It is the model that was endorsed by the last federal inquiry into rights reform — the National Human Rights Consultation Committee — in 2009, that formed the basis for the bills of rights enacted in the Australian Capital Territory in 2004 and in Victoria in 2006, and that is said to describe the bills of rights found in Canada, New Zealand and the United Kingdom. The dialogue model has risen to prominence because it is often claimed to provide ‘a better working coexistence of democratic self-governance and the constraints of constitutionalism, the twin concepts underlying constitutional democracy’. It seeks to achieve this coexistence by simultaneously empowering courts to review executive and legislative acts for compatibility with rights while also preserving the centrality of legislatures in evaluating and resolving disagreements about the scope and limit of rights through the investiture of new responsibilities and powers before and after acts of judicial review. This chapter highlights a set of considerations that should factor into the design and drafting process if a dialogue model were to be chosen. In particular, it argues that part of that process should focus on the normative trade-offs that arise with the model. A normative trade-off is a point of tension between two principles or features, each of which is capable of reasonable justification. The dialogue model gives rise to a number of points of tension with other aspects of Australia’s constitutional system of government. For example, its system of legislative committee review, which facilitates legislative disagreement with the executive’s positions on rights issues, is in tension with Australia’s existing system of responsible government, which operates to minimise disagreement between the executive and legislature. If these points of tension are not addressed prior to the enactment of a bill of rights, it will fall to institutional actors (ie members of the executive, legislature and judiciary) to resolve them after enactment. If this occurs, the risk is that these actors will prioritise the existing features of the constitutional system because they are well-established and well-known, which would undermine the dialogue model’s ability to function in practice and thus achieve the working coexistence mentioned above. This chapter puts forward three, related suggestions about the way in which the design and drafting process should proceed in order to identify, analyse and resolve, as far as is reasonably possible, the normative trade-offs before the enactment of any bill of rights. First, the process must go beyond the four walls of the bill of rights to include potential reforms to other aspects of Australia’s existing constitutional system of government. Reform of the system of responsible government, for example, should be one potential option for resolving the point of tension between it and legislative committee review. Second, the process should include, and indeed prioritise, the possibility of implementing a dialogue bill of rights by means of a constitutional rather than statutory instrument. In the event of a point of tension between a statutory instrument (the dialogue bill of rights) and a feature of the existing constitutional system, the latter will almost invariably prevail due to the priority that is accorded to constitutional law. For any of these normative trade-offs to be resolved in a manner that favours the operation of the dialogue bill of rights, it must have the same status in the hierarchy of laws as the competing principles or features. Third, the process must be inclusive and popular rather than exclusive and elite. Not only will this give any proposed constitutional reforms a greater likelihood of success at the referendum, it also counters the perception from scholars evaluating the advent of bills of rights in similarly-situated countries that they are the product of inter-party competition and elite self-interest rather than a broad-based, popularly-supported movement.