- See eg L Benton Law and Colonial Cultures: Legal Regimes in World History (CUP Cambridge 2002) ch 5.
- For an interesting account of the influence of English rule of law values in the early history of New South Wales see D Neal The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (CUP Melbourne 1991).
- LG Mitchell (ed) Burke's Reflections on the Revolution in France (OUP Oxford 1999); J Bentham ‘Anarchical Fallacies and Supply without Burthen’ in J Waldron (ed) Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (Methuen London 1987). See also ECS Wade (ed) Dicey's Introduction to the Study of the Law of the Constitution (10th edn Macmillan London 1959).
- On the UK's attitude to the ECHR eg see E Wicks ‘The United Kingdom Government's Perceptions of the European Convention on Human Rights at the Time of Entry' [2000] PL 438; Lord Lester ‘UK Acceptance of the Strasbourg Jurisdiction: What Went on in Whitehall in 1965' [1998] PL 237. It would seem that the peremptory actions of the Thatcher governments led to an increased interest in the potential of human rights in the domestic sphere: eg see K Ewing and C Gearty Freedom under Thatcher: Civil Liberties in Modern Britain (OUP Oxford 1990); T Prosser and C Graham (eds) Waiving the Rules: the Constitution under Thatcherism (Open University Press Milton Keynes 1988).
- Debate during the Constitutional Conventions in the 1890s showed little interest in the entrenchment of basic rights within the Federal Constitution. A referendum in 1944 that proposed, inter alia, the insertion of constitutional guarantees of freedom of speech and religion failed. A Human Rights Bill introduced in 1973 to implement the International Covenant on Civil and Political Rights lapsed with the dismissal of the government of Gough Whitlam in 1975. The Constitution Alteration (Rights and Freedoms) Bill 1988, which would have inserted several new rights in the Constitution, was rejected at a referendum. The Australian Bill of Rights 2000 (introduced by the Democrats) failed to get the required government support. For a more comprehensive survey, see Gilbert and Tobin Centre of Public Law ‘History of Bills of Rights in Australia’ <http://www.gtcentre.unsw.edu.au/bills-of-rights-resources-history.asp> (30 November 2004).
- G Williams Human Rights under the Australian Constitution (OUP Oxford 2002) ch 4.
- ‘Towards an ACT Human Rights Act’: Report of the ACT Bill of Rights Consultative Committee (Canberra May 2003) (Report).
- ibid [2.46].
- ibid [2.48].
- ibid [2.71].
- For the views of the former Commonwealth Attorney-General see D Williams ‘Against Constitutional Cringe: the Protection of Human Rights in Australia’ (2003) 9 Australian J of Human Rights 184. The Prime Minister has also registered his antipathy to any development on the human rights front: see ‘Transcript of the Prime Minister the Hon. John Howard MP Interview with John Laws, Radio 2UE' (8 March 2004) <http://www.pm.gov.au/news/interviews/Interview738.html> (30 November 2004).
- See T Blackshield and G Williams Australian Constitutional Law and Theory (3rd edn The Federation Press Sydney 2002) 270–87.
- eg see D Bonner H Fenwick and S Harris-Short ‘Judicial Approaches to the Human Rights Act’ (2003) 52 ICLQ 549; C Gearty ‘Civil Liberties and Human Rights' in N Bamforth and P Leyland (eds) Public Law in a Multi-Layered Constitution (Hart Publishing Oxford 2003); J Jowell ‘Judicial Deference and Human Rights: A Question of Competence’ in P Craig and R Rawlings (eds) Law and Administration in Europe: Essays in Honour of Carol Harlow (OUP Oxford 2003); F Klug and K Starmer ‘Incorporation Through the Front Door: An Evaluation of the Human Rights Act in the Courts’ [2001] PL 654.
- Report (n 7) [4.5].
- eg see K Roach ‘Constitutional and Common Law Dialogues between the Supreme Court and Canadian Legislatures’ (2001) 80 Canadian Bar Rev 481; P Hogg and A Bushnell ‘The Charter Dialogues between Court and Legislatures (Or Perhaps The Charter of Rights Isn't Such a Bad Thing After All)’ (1997) 35 Osgoode Hall LJ 75.
- The Committee also expressed the concern that ‘judicial attitudes to rights often lag behind those of the legislature’: Report (n 7) [4.6]–[4.7].
- ibid [3.6].
- ibid [3.21].
- eg see J Waldron Law and Disagreement (OUP Oxford 1999); M Tushnet Taking the Constitution Away from the Courts (Princeton University Press Princeton 1999). For perspectives from the Commonwealth see M Anderson and M Happold (eds) Constitutional Human Rights in the Commonwealth (British Institute of International and Comparative Law London 2003).
- eg see K Ewing ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79; Lord Hoffmann ‘Human Rights and the House of Lords' (1999) 62 MLR 159.
- For a defence of the new Human Rights Act see the paper delivered by ACT Chief Justice T Higgins ‘Australia's First Bill of Rights—Testing Judicial Independence and the Human Rights Imperative' (National Press Club Canberra 3 March 2004).
- On the parliamentary debate during the passage of the Human Rights Act 1998 see J Cooper and A Marshall-Williams (eds) Legislating for Human Rights: The Parliamentary Debates on the Human Rights Bill (Hart Publishing Oxford 2000). See also J Goldsworthy The Sovereignty of Parliament: History and Philosophy (OUP Oxford 1999) 3–4.
- eg see TM Scanlon ‘Rights, Goals, and Fairness’ in The Difficulty of Tolerance: Essays in Political Philosophy (CUP Cambridge 2003) 26–41.
- eg see S Holmes Passions and Constraint: On the Theory of Liberal Democracy (Chicago University Press Chicago 1995).
- UK courts issued 15 declarations of incompatibility under the Human Rights Act by 30 July 2003, of which 10 remain in place after appeals <http://www.humanrights.gov.uk/decihm.htm> (15 December 2004).
- Consider eg the following trio of cases from the US: Employment Division, Department of Human Resources of Oregon v Smith 494 US 872, 110 S Ct 1595 (1990); Religious Freedom Restoration Act 1991, HR 1308; and RAV v City of St Paul 505 US 377, 112 S Ct 2538 (1992).
- For the use of the ‘voice’ and ‘exit’ framework in the area of European constitutionalism see J Weiler ‘The Transformation of Europe’ in The Constitution of Europe (CUP Cambridge 1999) 10.
- On the use of s 3 see eg R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45; Poplar Housing and Regeneration Association Ltd v Donoghue [2001] EWCA Civ 595, [2002] QB 48; cf Wilson v First County Trust Ltd [2001] EWCA Civ, 633 [2001] 3 WLR 42; R (on the application of Anderson) v Secretary of State for the Home Department [2002] UKHL 46, [2003] 1 AC 837; Re S [2002] UKHL 10, [2002] 2 AC 291; Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 437; D Nicol ‘Statutory Interpretation and Human Rights after Anderson’ [2004] PL 273; A Kavanagh ‘Statutory Interpretation and Human Rights after Anderson: A More Contextual Approach' [2004] PL 537.
- For a more comprehensive analysis of this issue see CA Gearty Principles of Human Rights Adjudication (OUP Oxford 2004) ch 3.
- Report (n 7) [4.10].
- ibid [4.10].
- ibid [4.11], [4.14].
- In a similar vein, s 38 of the Act enjoins standing committees to report to the Legislative Assembly about human rights issues raised by bills presented to the Assembly.
- J Waldron The Dignity of Legislation (CUP Cambridge 1999); Waldron (n 19).
- R v A (No 2) (n 28) 1546 (Lord Hope).
- Report (n 7) [4.15], [4.17].
- The phrase ‘working out the meaning of a Territory law' is defined—very broadly—in s 30(3).
- eg see R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 (HL); R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 WLR 1622.
- Legislation Act 2001 s 139.
- Report (n 7) [4.33].
- It was possible previously for a UK citizen to argue directly on the basis of breach of European Convention rights before the European Court of Human Rights in Strasbourg, but not before domestic courts: see R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696 (CA).
- For a considered reflection on this issue in the context of contemporary Australia see G Williams The Case for an Australian Bill of Rights: Freedom in the War on Terror (University of New South Wales Press Sydney 2004).
- Report (n 7) [4.72].
- AR Mowbray ‘The European Court of Human Rights' Approach to Just Satisfaction’ [1997] PL 647.
- Report (n 7) [4.78].
- Human Rights Act 2004 (Cth) s 32(3).
- Human Rights Act 1998 s 10(2) (see also s 10(3) and sch 2).
- KD Ewing ‘The Unbalanced Constitution’ in T Campbell KD Ewing and A Tomkins (eds) Sceptical Essays on Human Rights (OUP Oxford 2001).
- Report (n 7) [5.29].
- Constitution of South Africa Act 108 of 1996 ss 26(2), 27(2); Soobramoney v Minister of Health, Kwa-Zulu Natal 1998 (1) SA 765 (CC); see also eg DM Davis ‘Constitutional Borrowing: The Influence of Legal Culture and Local History in the Reconstitution of Comparative Influence—The South African Experience’ (2003) 1 J of Intl Constitutional L 181.
- The Government of South Africa v Grootboom 2001 (1) SA 46 (CC).
- Minister of Health v Treatment Action Campaign 2002 (5) SA 721 (CC); see D Bilchitz ‘South Africa: Right to Health and Access to HIV/AIDS Drug Treatment’ (2003) 1 J of Intl Constitutional L 524.
- The Human Rights Act (UK), by contrast, contains no freestanding non-discrimination provision.
- Human Rights Act 2004 (n 46) Preamble, cl 7.
- Report (n 7) [5.62].
- Report, Draft Human Rights Bill sch, cl 12.
- Aboriginal and Torres Strait Islander Social Justice Commissioner ‘Social Justice Report 2003’ (2004) Human Rights and Equal Opportunities Commission.
- A Moorhead The Fatal Impact (Penguin Harmondsworth 1966) pt 2; H Reynolds The Law of the Land (3rd edn Penguin Books Australia Camberwell Victoria 2003).
- See further B Barry Culture and Equality (Polity Cambridge 2001).
- cf G Greer Whitefella Jump Up: The Shortest Way to Nationhood (Profile Books London 2004).
- Report (n 7) [3.60].
- cf the establishment under the framework of the Human Rights Act (UK) of the Joint Committee on Human Rights.
- C McCrudden ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’ (2000) 20 OJLS 499.
Oxford University Commonwealth Law Journal
Volume 4, 2004 - Issue 2