From Dialogue to Disagreement in Comparative Rights Constitutionalism

Scott Stephenson (Autor)

Buch | Hardcover

272 Seiten

2016
Federation Press (Verlag)
978-1-76002-067-5 (ISBN)

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The bills of rights adopted in the Commonwealth countries have prompted scholars and institutional actors involved in the process of constitutional design and reform to rethink how to evaluate and compare the different approaches to human rights protection. This book contributes to future debates about rights reform in Australia and elsewhere.

The bills of rights adopted in the Commonwealth countries of Canada, New Zealand, the United Kingdom and, at the subnational level, Australia in recent decades, have prompted scholars and institutional actors involved in the process of constitutional design and reform to rethink how to evaluate and compare the different approaches to human rights protection. They have challenged a number of assumptions in the field, for example, that courts must have the power to invalidate laws that are found to violate rights (ie courts can now be given non-binding powers), that courts must have the `final word' on rights issues (ie legislatures can now be given the power to override judicial decisions) and that bills of rights are enforced exclusively by courts (ie legislators can now be given new responsibilities to ensure that the laws they enact are compatible with rights).

This book addresses three questions arising from these developments. How do these new bills of rights differ from the traditional approaches to rights protection? Why, if at all, should we consider the Commonwealth's approach over the traditional approaches? What compromises must be struck in the course of adopting a bill of rights of this variety? In answering these questions, the book sets out a new framework for comparison that focuses on the types of inter-institutional disagreement facilitated by and found in the different approaches to rights protection. It also identifies a previously unrecognised element of the Commonwealth's approach - the normative trade-offs with other constitutional principles and values - that is pivotal to understanding its operation. Finally, it seeks to contribute to future debates about rights reform in Australia and elsewhere by setting out a number of lessons that emerge from the answers to these three questions.

Dr Scott Stephenson is a Lecturer at Melbourne Law School, The University of Melbourne. His research focuses on topics of Australian and comparative constitutional law and theory, including the migration of constitutional ideas, models of rights protection, federalism, and international law's effects on domestic constitutional doctrines. After receiving his BA and LLB(Hons) with the University Medal in Law from the Australian National University, he worked at the High Court of Australia, first as the Court's Legal Research Officer and then as Associate (Law Clerk) to Justice Virginia Bell AC. He then obtained his LLM and JSD from Yale University. While at Yale, he held the position of Tutor-in-Law for two years, was awarded the Fox International Fellowship to spend a year undertaking research at the University of Cambridge, and visited the University of Copenhagen's Centre of Excellence for International Courts (iCourts). He has published in a number of Australian, Irish, UK and international journals, including Dublin University Law Journal, International Journal of Constitutional Law, Melbourne University Law Review, and Public Law.

CONTENTS
Abstract
Acknowledgements

1. Introduction
I. Three questions
II. The Commonwealth's approach
III. How is multi-stage rights review different?
IV. Why multi-stage rights review?
V. Which normative trade-offs must be made?
VI. Structure of the book

2. The advent of multi-stage rights review
I. Introduction
II. Canada
A. Prelude to the Charter: The Bill of Rights 1960
B. The Canadian Charter of Rights and Freedoms 1982
III. New Zealand
IV. The United Kingdom
V. Australia
VI. Conclusion

3. Framework for comparison
I. Introduction
II. Expounding inter-institutional disagreement
A. Focusing on inter-institutional interaction
B. Focusing on inter-institutional disagreement
C. Why institutions?
D. Why disagreement?
III. Justifying inter-institutional disagreement
A. Incorporating all three institutions of government
B. Incorporating the nuances of the traditional paradigms
C. Emphasising the negative dimensions of multi-stage rights review
D. The case for inter-institutional disagreement
IV. Conclusion

4. The problems with legislative supremacy
I. Introduction
II. Avenues and consequences of indirect inter-institutional disagreement
III. Four sources of indirect inter-institutional disagreement
A. Judicial review of administrative action
B. Statutory interpretation
C. Structural constitutional provisions
D. Implied constitutional rights
IV. Conclusion

5. The problems with judicial supremacy
I. Introduction
II. Direct inter-institutional disagreement
III. The costs of indirect inter-institutional disagreement
IV. Forms of indirect inter-institutional disagreement
A. Context
B. Types
C. Legitimacy
V. Conclusion

6. Facilitating direct inter-institutional disagreement
I. Introduction
II. The characteristics of direct disagreement
A. Stage one: executive review
B. Stage two: legislative committee review
C. Stage three: rights-based judicial review
D. Stage four: legislative override
E. The cumulative effects of multi-stage rights review
F. A culture of justification
G. Reducing the tendency to defer
III. The case for direct disagreement
A. Multiple perspectives and multiple points of public participation
B. Analogous ideas associated with the traditional paradigms
C. Beyond disagreement?
IV. Conclusion

7. Normative trade-offs
I. Introduction
II. Bureaucratic independence
III. Responsible government
IV. Separation of powers
V. The rule of law
VI. Comity
VII. Conclusion

8. The United Kingdom
I. Introduction
II. Executive rights review
A. Practice
B. Evaluation
III. Legislative committee review
A. Practice
B. Evaluation
IV. Rights-based judicial review
A. Practice
B. Evaluation
V. Legislative override
A. Practice
B. Evaluation

9. Canada
I. Introduction
II. Executive rights review
A. Practice
B. Evaluation
III. Rights-based judicial review
A. Practice
B. Evaluation
IV. Legislative override
A. Practice
B. Evaluation

10. New Zealand
I. Introduction
II. Executive rights review
A. Practice
B. Evaluation
III. Rights-based judicial review
A. Practice
B. Evaluation
IV. Legislative override
A. Practice
B. Evaluation

11. Australia
I. Introduction
II. Executive rights review and legislative committee review
A. Practice
B. Evaluation
III. Rights-based judicial review and legislative override
A. Practice
B. Evaluation

12. Conclusion
I. The relevance of context
II. Responsible government
III. The rule of law
IV. The separation of powers
V. The limits of direct disagreement
VI. The next step

Erscheinungsdatum	04.10.2016
Verlagsort	Annandale, NSW
Sprache	englisch
Maße	156 x 234 mm
Gewicht	630 g
Themenwelt	Recht / Steuern ► Allgemeines / Lexika
	Recht / Steuern ► EU / Internationales Recht
	Recht / Steuern ► Öffentliches Recht ► Verfassungsrecht
ISBN-10	1-76002-067-2 / 1760020672
ISBN-13	978-1-76002-067-5 / 9781760020675
Zustand	Neuware