This briefing paper reviews the current debate about bills or charters of human rights. Particular note is taken of recent developments in those jurisdictions which belong to the Westminster tradition of parliamentary government and which, in their different ways, seek to reconcile the principles of parliamentary supremacy and judicial review – Canada, New Zealand, the UK and the ACT.

The immediate background to the paper is that a charter of rights is to be introduced in Victoria, while here in NSW Attorney General Bob Debus has announced that he intends to take a similar proposal to Cabinet, ‘to invite public consultation on the values and rights Parliament should protect’.

NSW Legislation Review Committee: In October 2001 the Legislative Council Standing Committee on Law and Justice published a report entitled A NSW Bill of Rights. The report recommended against enacting a statutory Bill of Rights in NSW. Instead, it recommended that the NSW Parliament establish a joint Scrutiny of Legislation Committee, similar to the Senate Scrutiny of Bills Committee. On 15 August 2003, the Legislation Review Committee commenced its function of reviewing and reporting on all bills introduced into the Parliament. (page 2)

Terrorism and human rights: The 11 September terrorist attacks in the US and those that followed ushered in a new era of global terrorism, against which a new generation of counter terrorist measures have been passed, many of which have raised serious human rights concerns. (page 4)

Controversy: The bill of rights issue remains controversial. Opponents continue to be highly sceptical about the merits of judicial review. On the other side, in Australia influential voices have been raised in support of a bill of rights, from judicial and other circles. (pages 5-7)

The US model: A major flaw of the US model from the perspective of the Westminster parliamentary system of government is that it makes judges the ultimate arbiters in conflicts over human rights. US jurisprudence on capital punishment hardly makes a compelling case for a bill of rights. (pages 14-17)

The dialogue on human rights: One influential point of view in the ongoing debate is that both courts and legislatures have a role to play in a two-sided dialogue on human rights, one that is truly ‘liberal democratic’ in that it combines the majoritarian and representative principles embodied in democratic legislatures, on one side, with the respect for minority and individual rights expressed by the courts, on the other. It is in terms of such a ‘dialogue’, in which the claims of parliamentary supremacy are reconciled with those of judicial review, that current arguments for bills of rights at the national and State levels in Australia are framed. (page 18)

The Canadian model: This dialogue has its principal origins in the Canadian Charter of Rights and Freedoms of 1982. Unlike the New Zealand and British equivalents, but like its US counterpart, the Canadian Charter is constitutionally entrenched. Its most innovative feature in terms of the dialogue between parliaments and the judiciary is the legislative override or ‘notwithstanding’ clause. By express enactment of ordinary legislation, the national Parliament or a provincial legislature may set aside a judicial finding of unconstitutionality, thereby preserving the supremacy of democratically elected institutions over the unelected courts. (pages 18-19)

While the Charter has certainly made an enormous impact, the relevant jurisprudence is still something of a mixed bag. Some cases suggest that judicial deference lives on, whereas others confirm the view that Canada has yet to reject the ‘American equation of judicial review with judicial supremacy’. (page 31)

The New Zealand model: The New Zealand Bill of Rights Act 1990 is not constitutionally entrenched supreme law. Instead, it is an ordinary piece of legislation which can be repealed by the usual parliamentary processes. Under the Act the scope of judicial review in restricted. Unlike in Canada, the courts in New Zealand cannot strike down legislation that is inconsistent with the bill of rights. Another important difference is that the New Zealand Act provides for the pre-enactment scrutiny of legislation by members of Parliament. (page 33)

The impact made by the Bill of Rights Act 1990 has to be considered in the context of the broader political context, notably the introduction of the Mixed Member Proportional electoral system which is said to have ‘proved the more direct answer to the sorts of concerns that fuelled the call for a bill of rights in 1984’. (page 37)

The UK model: The UK Human Rights Act 1998, which came into force in October 2000, sets up its own form of dialogue between Parliament and the courts. Basically, it incorporates the major rights found in the ECHR into domestic UK law and makes these enforceable in the courts. However, as an ordinary piece of legislation, the Act does not entrench these rights. Nor does it provide the courts with the power to declare primary legislation invalid. Instead, the higher courts are granted the power to make a ‘declaration of incompatibility’, the making of which can allow a Minister to seek parliamentary approval for a remedial order to amend legislation to bring it into line with Convention rights. In terms of the relationship between Parliament and the courts, this is the major structural innovation of the UK Act. Further, the pre-enactment scrutiny process has been enhanced by the establishment of the Joint Committee on Human Rights. (pages 42-48)

The ACT model: The ACT’s Human Rights Act 2004 is closely modeled on the UK legislation. One innovative feature is that statutory provision is made for the parliamentary review of legislation by a standing committee. (pages 60-61)

The proposed Victorian model: This combines all the structural features that facilitate dialogue between Parliament and the courts, including an ‘override’ clause, provision for the making of ‘declarations of incompatibility’ and pre-enactment scrutiny of legislation. (page 64)

Questions: Is a charter of rights needed in NSW? Would a charter of rights make a difference? How significant and beneficial would its impact be? The experiences of jurisdictions discussed in this paper suggest that the answers to these questions are both complex and contested. (page 72)