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Stanton, Michael --- "Fighting Phantoms: A Democratic Defence of Human Rights Legislation" [2007] AltLawJl 22; (2007) 32(3) Alternative Law Journal 138

  • FIGHTING PHANTOMS: A democratic defence of human rights legislation
  • FIGHTING PHANTOMS
    A democratic defence of human rights legislation

    MICHAEL STANTON[*]

    Law is most distinctly of the messy, contested, and value-saturated world that it seeks to understand and regulate, even if it too often pretends that it is not.[1]

    For an Australian lawyer, the bold proclamation that ‘human rights have won the ideological battle of modernity’[2] must be received with a degree of bemusement. Despite the efforts of groups such as New Matilda, a federally enacted bill of rights is still a long-term aspiration. However, the recent enactment of the Charter of Rights and Responsibilities Act 2006 (Vic) (‘the Charter’), following the enactment of the Human Rights Act 2004 (ACT), has provided an impetus for those who believe that Australia should no longer remain the only western democracy without a national human rights instrument.

    The enactment of the Charter received considerable criticism from some media commentators, who argued that it will only succeed in giving ‘…activist judges much more freedom to change the laws to suit their philosophy,’[3] and in making Victoria ‘less democratic.’[4] The recent push in New South Wales for a human rights statute, mirroring developments in Tasmania and Western Australia, has seen detractors repeating the argument that such legislation will only result in ‘greater judicial power’.[5] Most recently, the debate concerning judicial activism has centered upon Jason Pierce’s text Inside the Mason Court Revolution: The High Court of Australia Transformed.[6]

    These criticisms largely echo the concerns of John Howard with regard to a national bill of rights, when he remarked that:

    In our parliamentary democracy, politicians are elected to make decisions on behalf of the community. They are elected by the people and, ultimately, they are answerable to the people for the decisions they make. To draw these decisions away from the legislature and the executive and to invest them in the hands of the judiciary would irrevocably change our democracy.[7]

    It is instructive to consider the criticisms above in light of the British experience. The Victorian Charter has been substantially modelled on the Human Rights Act 1998 (UK) (‘the UK HRA’), although important differences remain: the Charter limits the definition of Courts as public authorities, refers to interpreting statutes consistently with their purpose, provides for declarations of ‘inconsistent interpretation’ rather than incompatibility, mandates a legislative response to such declarations, and prevents the award of damages in circumstances of breach.[8]

    This article will consider criticisms of the UK HRA which hold that it undermines parliamentary sovereignty and transforms the traditional judicial role. The paradigmatic critique is Loughlin’s consideration of the juristic significance of the ‘positivisation’ of natural rights, which he contends has caused ‘a basic shift in the nature of the legal order’[9] For Loughlin:

    The general implications for juristic thought are profound: principles tend to replace rules as the basic building blocks of the legal order, the positivist separation of law from morals disintegrates … a change from literalistic to teleological canons of interpretation becomes fashionable, and all these trends impact powerfully on the question of what counts as a good legal argument.[10]

    Loughlin concludes that the law will become increasingly politicised as judges grapple with incommensurable values; judges will make policy choices in circumstances where there is ‘…no overarching objective standard by which disputes can be resolved’.[11]

    The danger of Loughlin’s critique is that it downplays the traditional function of judges in using principles to develop the common law. It understates the methodology of human rights law, where rules are clearly designed to take precedence over principles. It also overlooks the capacity of judges to purposively strive towards objectivity in human rights cases. Perhaps most worryingly, it supports a form of judicial deference to the legislature that has the potential to undermine the functionality of human rights legislation (which is itself an expression of legislative intent and should be respected as such).[12]

    This article advances three propositions in responding to the critique of the ‘positivisation’ of human rights:

    1) Judges make law, and have done so throughout the evolution of the common law. They are no strangers to reasoning in terms of principles, public policy and teleology. As such, the transformation created by human rights instruments is not as dramatic as some critics would claim.

    2) There are better and worse human rights judgments, and not because one agrees with the outcome in a particular case. If one concedes this point, then there is necessarily a rule-based methodology underpinning human rights law. The alternative position is that there is no qualitative difference in any human rights judgment, which necessarily undermines the legitimacy of the judicial task in the common law, and therefore the rubric of the legal system.

    3) Transparency in judicial decision-making is good for democracy, and facilitates parliamentary sovereignty. Human rights statutes contribute to transparency by enabling judges to declare principles at play directly rather than employing dogmatic conceptions of ‘common sense’ or the legal myth that they are merely discovering legal principles that have existed since time immemorial. This transparency is vital, because it better enables Parliament to amend the principles at play if it believes it necessary.

    In combination, these propositions provide a potential antidote to those who claim that the positivisation of human rights is poisonous to the democratic ideal. Moreover, in a discipline where the tag of ‘judicial activism’ is more readily deployed than understood, we should take pause to question who are the true activists — those who advocate the development of human rights jurisprudence according to law, or those who seek to circumscribe the judicial function.[13]

    Judicial creativity

    Judges make law. It is surprising how making this statement feels somewhat risqué, especially given that judges have openly declared the fact for over half a century. For Heydon J to even have to remind a lawyer of this fact assumes that one suffers from ‘crippling and recurrent attacks of amnesia’.[14] In his seminal paper[15], Sir Owen Dixon — the champion of strict and complete legalism — advocated a judicial approach which embodied ‘…the combined purposes of developing the law, maintaining its continuity and preserving its coherence’.[16] Whilst he lambasted the ‘conscious judicial innovator’, his position must be regarded as accepting the proposition that the common law is ‘developed’ by judges, and he stated that ‘…it is an error, if it is believed that the technique of the common law cannot meet the demands which changing conceptions of justice and convenience make’.[17]

    Lord Reid derided as a ‘fairy tale’ the conception that judges merely ‘declare’ the common law as found.[18] Lord Bingham has stated that judges know from experience:

    that the cases they have to decide involve points which are not the subject of previous decisions, or are the subject of conflicting decisions, or raise questions of statutory interpretation which apparently involve genuine lacunae or ambiguities. They know and the higher the Court the more right they are, that decisions involve issues of policy.[19]

    As recently as October last year, Hayne J stated that ‘[t]here can be no doubt that the judges make and develop the common law’.[20]

    Legal history is replete with examples of judges developing the common law, in no small part based on principles and considerations of public policy. The classic example is Donoghue v Stevenson[21], which greatly expanded the type of relationships under which a duty of care could be found owing. Notably, Lord Aitken’s rationale for the expansion of negligence law was attributed to the Christian principle that one should love one’s neighbour.[22] A more modern example is that of R v R[23], where the common law immunity of husbands from marital rape was abolished. In that case, Lord Keith cited with approval [24] the reasons for judgment of Lord Emslie of the High Court of Justiciary in Scotland in S v HM Advocate[25] that:

    By the second half of the 20th century… the status of women, and the status of a married woman, in our law have changed quite dramatically… A live system of law will always have regard to changing circumstances to test the justification for any exception to the application of a general rule.[26]

    It should not be supposed that these judgments arose in a vacuum. They pointed to developments in other jurisdictions or the gradual evolution of the common law within their own.[27] It should come as no surprise that judges have been wrestling with conceptions of love, fairness and equality throughout the development of the common law. These judgments are reflective of shifts in public sentiment and teleological considerations about what a just society looks like.

    But how does this observation assist with regard to the human rights debate? Suffice it to say that negligence no more exists in the world than does a fair trial, free expression or privacy. These are human concepts, which are necessarily abstract and attempt to encapsulate concrete real-life situations. The judicial task, invariably, consists in determining where the boundaries of these legal concepts lie when applied to fact. As these concepts are open-ended human constructs, this is not achieved by gazing at a dictionary, and must be informed by considering the political context of societies themselves. This has been a task of courts, especially ultimate courts of appeal, for a long time. As Curran has argued,

    [t]he common law perpetually is in flux, always in a process of further becoming, developing and transforming… with a suppleness that resides in its inseparability from each discrete, concrete set of facts.[28]

    Perhaps anticipating this form of response, Goldsworthy has remarked that:

    it might be argued that judicial enforcement of a bill of rights is no more unpredictable in its effects than the exercise of some other judicial powers, such as that of overturning earlier decisions at common law, or applying moral principles enshrined in legislation or case law. But perhaps that merely shows that other judicial powers also tend to diminish rather than enhance the rule of law…[29]

    It is one thing for critics of the positivisation of human rights to claim that the UK HRA and the Charter represent a new era and transformation of the judicial function. But it is another altogether if that critique changes shape dramatically if it is expanded to say that judges threaten the rule of law in exercising their traditional powers in developing the law. Suddenly it is not human rights legislation that threatens democracy, but the judicial function itself. Under this expanded critique, it seems that the radicals are no longer the human rights lawyers, but those who would assert that the judicial role should be circumscribed under a nebulous conception of the rule of law. As Kirby J has remarked:

    Truly, it is those who would preach these doctrines who are the activists. They are seeking to change the creative features of our law and the function of the judicial branch that have existed for centuries. They must not succeed for theirs is a counter-reformation that would put back the course of legal history, condemn us to a Dickensian world of formalistic rules and formularies and diminish our search for just principles of law at home and dialogue about them with fellow professionals abroad.[30]

    The clearest endorsement of ‘conservative’ judicial activism comes from the pen of Janet Albrechtsen, who endorses what she perceives as the recent approach of the Supreme Court of the United States whereby:

    The one-sided war is over. Judicial activism of the progressive kind will be met with judicial activism of the conservative kind. As unseemly as it appears, it may ultimately lead to peace.[31]

    For Albrechtsen, the ideological end clearly justifies the activist means.

    What such critics fail to understand is that our common law heritage has always seen judges employing principles and teleological reasoning in their judgments while being constrained by rules. Such an approach is apposite with regard to human rights adjudication. It is still possible to consider ‘…the nature and quality of the reasoning deployed in support of the conclusion reached’, which Hayne J, citing Dixon, regards as the key to appraising the standard of judicial decision-making.[32]

    Methodology

    In the wake of the criticism concerning the UK HRA and the Charter, it is sometimes easy to forget that there were dissenting judgments before their enactment. There were cases where reasonable minds could differ. Critics cannot merely point to divided courts on human rights issues and proudly proclaim that they have revealed the subjectivity of the law, unless by this they intend to argue that all legal decision-making is subjective.

    In response to Loughlin’s concern about the elevation of principles above rules in human rights law, the most obvious point to begin when discussing the rules is with the Act itself. Like the Charter, the UK HRA provides a clear body of rules that renders principles subservient. In short, s 3 provides that the judiciary must read and give effect to legislation in a way that is compatible with Convention rights ‘so far as it is possible to do so.’ Should this prove impossible, the Court must issue a declaration of incompatibility under s 4. Parliament may then elect to address the incompatibility in any way it sees fit, if at all. A similar interplay is provided by sections 32 and 36 of the Charter. The tension that such a system creates is in delineating the boundaries of possible interpretation by the courts.

    To illustrate my argument, I will take what might seem like an unusual step and point to a flawed human rights judgment. It would be most unreasonable if critics of human rights legislation did not permit judicial error; no area of law could sustain such a test. In the case of R v A (No 2)[33], the House of Lords read down ‘rape shield’ laws in the Youth Justice and Criminal Evidence Act 1999 (UK) that were clearly enacted to prevent complainants being examined about their sexual histories except in very specific circumstances. The first exception was if the evidence concerned issues of consent arising ‘at or about the same time’ as the alleged event.[34] The second was if there was evidence of a similar fact that was alleged to have been so similar to any sexual behaviour of the complainant as part of the event charged that it could not reasonably be explained as a coincidence.[35]

    In R v A (No 2), it was held that the right to a fair trial meant that the section should be read down, and that evidence of the complainant’s consensual sexual activity with the respondent over the three week period prior to the alleged rape was potentially admissible. This is problematic, because there were no issues of similar fact evidence apart from the bare fact that the complainant had previously had consensual sex with the respondent and the respondent claimed that she was also consenting on the occasion of the alleged rape. On a fair reading of the section, such evidence could hardly be seen to be similar fact evidence that could not ‘reasonably be explained as a coincidence’, nor an event ‘at or about the same time’ of the alleged rape.

    Pointing to the ‘strong’ interpretive requirement under section 3 of the UK HRA, Lord Steyn noted that it could be used to remedy ‘legislative overkill’, even if it led to interpretations that ‘linguistically might appear strained’.[36] For Lord Steyn, a declaration of incompatibility is a measure of ‘last resort’, and must be avoided wherever possible. Only in the light of clear parliamentary intent, such as an express limitation of convention rights, should such a measure be taken. [37] In contrast, Lord Hope observed that s 3 does not entitle ‘judges to act as legislators’; it does not allow them to change a statute’s meaning if it ‘…contains provisions which expressly contradict the meaning which the enactment would have to be given to make it compatible’.[38] This dispute was foundational; it concerned delineating the rules of the UK HRA that determine how principles affect statutory interpretation.

    As argued by Klug, the problem with Lord Steyn’s approach in R v A (No 2) is that it turned the law on its head. It effectively provided that:

    even if it is not possible to do so, primary and subordinate legislation must be read and given effect in a way which is compatible with Convention rights to liberty and a fair trial unless a clear limit to convention rights is stated.[39]

    In short, this is a mistake with regard to the rules of human rights law as provided by the interplay between ss 3 and 4 of the UK HRA, and endangers the careful balance struck by that Act.

    To be fair, judgments of precisely this kind were warned about by UK HRA cynics such as Campbell, who opined that ‘[l]egislation will already have been ‘read down’, implications drawn from the intention to comply with the ECHR[40] will already have been ‘read into’ the text, even before issues of compatibility are addressed’.[41]

    In a new area of law such mistakes are not to be unexpected, and arguably what is more important than an individual judicial mistake whether or not it becomes a well-established legal principle.

    R v A (No 2) was subject to considerable academic criticism and, as observed by Gearty, the more reserved methodology of Lord Hope’s judgment has since predominated within the House of Lords.[42] Doubtlessly, cases will still arise that test the boundaries of possible interpretation under the UK HRA, and Ghaidan v Godin-Mendoza[43] provides such an example. However, it is notable that even in such cases it has been accepted that a court must not give a provision a meaning inconsistent with a fundamental feature of the legislation.[44] Notably, the Charter differs from the UK HRA in expressly providing that statutes must be interpreted consistently with their purpose.[45]

    An alternative critique, from Thomas Poole, is that judges will adopt a new form of ‘strategic’ reasoning and rhetorical technique under the Act, focusing on dogmatic statements of principle rather than giving carefully reasoned rule-based judgments. Poole focuses on Lord Hoffman’s reasons for judgment in the Belmarsh Detainees case[46], where he held that ‘anti-terrorism’ laws which enabled the detention of foreign nationals without charge were not justified under Article 15(1) of the ECHR. Noting Hoffman’s references to experiences of ‘Nazi occupation’, the unhelpfulness of Strasbourg jurisprudence, and statements concerning how the law violated ‘quintessentially British liberty’, Poole warns that this could reflect a change in judicial technique towards the rhetorical broad sweep.[47]

    However, the weakness of this critique is revealed in a concession Poole makes towards the beginning of his article. When considering how the Law Lords might have responded to the task at hand, he noted he would have expected them to focus on the relevant articles of the Convention, judgments of the European Court of Human Rights, international human rights standards, and comparable jurisdictions.[48] However, he then observes that this is precisely what the majority did, describing Lord Bingham’s speech as the very model of the ‘new internationalism’, extensive in its consideration of relevant law, rules and principle.[49]

    It takes far more than merely pointing to isolated examples of poor judgments to prove that we are on the verge of a new era where ‘principles tend to replace rules as the basic building blocks of the legal order’, all the more so where the majority of judges are found to be undertaking a rigorous rule-based approach. Indeed, the contrast of such approaches only serves to demonstrate that there is a preferable methodology of human rights jurisprudence. The fact remains that human rights judgments may be appraised on the quality of their reasoning, within the strict confines of the rules set by the UK HRA and the Charter.

    In human rights law, like all areas of the law, we expect judges to adopt a standard of reasoning not dependent upon their personal preferences. The very subjective striving towards the ideal of objectivity is all that can be asked of the judge in any area of law. In this sense, truth in the judicial task embodies the willingness not to deceive. Returning to Hayne J’s observations above, what is necessary is intellectual rigour in the analysis and application of principle.

    Parliamentary sovereignty

    The last proposition advanced by this article is that human rights law has the potential to advance transparency in judicial decision-making, and this is beneficial to parliamentary sovereignty. In order to develop this claim, one needs to recognise that the judicial task may involve ascertaining social values and weighing competing principles.

    Ewing makes the vital point that, under the UK HRA,

    it is open to the government to decide how to deal with the decision of the courts, and to refuse to take steps to remedy the incompatibility if it deems it appropriate to do so.[50]

    This is mirrored by the Charter. Ewing concludes that ‘…the inevitable incorporation of the Convention has been secured in a manner which subordinates Convention rights to constitutional principle and democratic tradition’.[51] This is true in so far as the Parliament can disregard declarations of incompatibility. As outlined above, this presupposes that courts will make such declarations rather than do violence to words under a broad doctrine of ‘possible interpretation’. Even then, of course, Parliament may still amend statutes to remedy what they regard as errant statements of legal principle (something that occurred regularly before the enactment of human rights legislation).

    Moreover, once it is conceded that the judicial role is creative as well as interpretive, and that judges reason in terms of principles constrained by rules, then such legislation is vital in providing a source of principles which are openly declared first by Parliament, and then by the judiciary, to the public. While academics such as Koskenniemi argue that it might well be strategic for the human rights community to deny that rights often defer to policy considerations[52], I see no advantage in hiding behind some form of ‘noble lie’ to either the origin of rights or their employment by the judiciary. It is enough that Parliament has declared that certain principles should inform the judicial task of statutory interpretation and that, should Parliament be found to have breached these principles, then this be drawn to their attention through a declaration of incompatibility or inconsistent interpretation. Rights only ‘obscure the political nature’[53] of the judicial task if judges and legal academics perpetuate the conservative myth that judges are merely declaring immutable, eternal values rather than developing law and employing legislatively endorsed principles that have been provided through the democratic process.

    Campbell notes that:

    it may be difficult for governments to ignore declarations of incompatibility or to override through legislation alterations to the common law which have been made by courts… At a time when judicially enforced ‘human rights’ have, in the eyes of the public and the media, greater political legitimacy than the outcome of partisan electoral processes, governments may not wish to subject themselves to the politically damaging opprobrium which would arise from their ignoring a declaration of incompatibility…[54]

    However, this should not be understood as a blow to parliamentary sovereignty. What Campbell is saying is not that Parliament lacks the power to override or ignore the courts, but rather that there will be situations when it is politically inexpedient to do so. I do not deny that the UK HRA and the Charter contain a form of shaming mechanism, one that Parliament chose for itself in an exercise of its sovereignty. However, if the consequence of this is that legislative action might be influenced by a public that is made aware of violations of human rights, is this a sign of the weakness of democracy or of its potential strength? I would argue that it is that latter, but most definitely it is not a sign of the diminution of parliamentary sovereignty unless the definition includes the belief that the legislature should not be accountable to its constituency.

    Notably, the British experience demonstrates that the practical impact of human rights instruments is nowhere near as dramatic as the more reactionary of its critics would claim. Contrary to the assertion that human rights legislation will only succeed in undermining ‘security and safety’[55] and diminish control over national borders[56], the British Government has recently endorsed the view of the Joint Committee on Human Rights that the UK HRA has not significantly impeded the Government’s objectives on crime, terrorism or immigration.[57] In an Australian context, it can likewise be observed that the operation of the Human Rights Act 2004 (ACT) has been very measured in practice.[58]

    While detractors bemoan the purported pitfalls of human rights statutes, they are all too willing to ignore the benefits of such legislation to the community. The departmental review of the UK HRA states that:

    The Human Rights Act can be shown to have had a positive and beneficial impact upon the relationship between the citizen and the State, by providing a framework for policy formulation which leads to better outcomes, and ensuring that the needs of all members of the UK’s increasingly diverse population are appropriately considered both by those formulating policy and by those putting it into effect.[59]

    Notably, the report concludes that the Government should actively seek to debunk myths about the scope and effect of the legislation.[60]

    Conclusion

    Sir Anthony Mason has remarked that ‘The legacy of judge-made law is massive. It occupies the 40-odd volumes of Halsbury’s Laws of England’.[61] The legal community should no longer feel some confused sense of shame about the truth that judges make law. It should be a source of pride. It is a part of the dynamism of the common law tradition through which our legal system responds to social change.

    The real challenge of the modern jurisprudential era concerns delineating the limits of judicial creativity. Through an analysis of the UK HRA, I have argued that there is a strong methodology to human rights law that sees principles as subservient to rules. There will be bad judgments, but the very fact that we can regard them in these terms is evidence that there is a system of rules in play.

    Provided judges aspire to the ideal of objectivity, and remember Dixon’s words that they must balance the combined purposes of developing the law, maintaining its continuity and preserving its coherence, then human rights law will strengthen our democratic institutions rather than hinder them. While reasonable minds might well differ about the application of a particular abstract right to a concrete set of circumstances, disagreement when applying law to fact is nothing new to the judiciary. Judges will continue to be held accountable by the standard of reason contained in their judgments. Those who would bemoan the positivisation of human rights would do well to heed the words of Miller that:

    We fight only for the status quo, our particular status quo. We battle with heads down and eyes closed. Actually there never is a status quo, except in the minds of political imbeciles. All is flux. Those who are on the defensive are fighting phantoms.[62]

    [*] MICHAEL STANTON is presently undertaking the Victorian Bar Readers’ Course, having recently completed his Master of Laws in Human Rights Law at the London School of Economics and Political Science.

    © 2007 Michael Stanton

    email: michael_d_stanton@hotmail.com

    [1] Allan Hutchinson, Evolution and the Common Law (2005), 253.

    [2] Costas Douzinas, ‘Human Rights and Postmodern Utopia’, (2000) 11 Law and Critique 219, 220.

    [3] Andrew Bolt, ‘Judicial Puppeteer’, Herald-Sun (Melbourne), 14 June 2006 <http://www.news.com.au/heraldsun/story/0,21985,19462043-25717,00.html> at 16 August 2007.

    [4] Mirko Bagaric, ‘Right Fight’, Geelong Advertiser (Geelong), 6 June 2006 <http://acthra.anu.edu.au/media/Rights%20Fight%206-6-06.pdf> at 16 August 2007.

    [5] Paul Sheehan, ‘A dead fish in a sea of red tape’, Sydney Morning Herald (Sydney), 16 April 2007 <http://www.smh.com.au/news/opinion/a-dead-fish-in-a-sea-of-red-tape/2007/04/15/1176575681205.html> at 16 August 2007. See also Janet Albrechtsen, ‘Beware, charted waters can have murky depths’, The Australian (Sydney), 18 April 2007, http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/beware_charted_waters_can_have_murky_depths/ at 16 August 2007.

    [6] See Chris Merritt, ‘Exposure to Kill Judicial Activism’, The Australian (Sydney), 16 July 2007 <http://theaustralian.news.com.au/story/0,25197,22080481-17044,00.html> at 16 August 2007. See also Janet Albrechtsen, ‘Put Meddling Judges in their Place’, The Australian (Sydney), 18 July 2007 <http://www.theaustralian.news.com.au/story/0,25197,22092407-21147,00.html> at 16 August 2007.

    [7] John Howard, Australia Day Address to the National Press Club, 25 January 2006. Available at <http://www.australianpolitics.com/news/2006/01/06-01-25_howard.shtml> at 16 August 2007.

    [8] See Simon Evans and Carolyn Evans, ‘Legal Redress Under the Victorian Charter of Human Rights and Responsibilities’, (2006) 17 PLR 264.

    [9] Martin Loughlin, ‘Rights Democracy and Law’ in Tom Campbell et al (eds), Sceptical Essays on Human Rights (2001), 54.

    [10] Ibid 56.

    [11] Ibid 58.

    [12] See Trevor Allan, ‘Human Rights and Judicial Review: A Critique of Due Deference’, (2006) 65(3) CLJ 671.

    [13] See Justice Michael Kirby, ‘Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty’[2006] MelbULawRw 18; , (2006) 30(2) MULR 576.

    [14] Justice Dyson Heydon, ‘Limits to the Powers of Ultimate Appellate Courts’, (2006) 122 LQR 399, 399.

    [15] Sir Owen Dixon, ‘Concerning Judicial Method’ (1956) 29 ALJ 468.

    [16] Ibid 472.

    [17] Ibid 476.

    [18] Lord James Reid, ‘The Judge as Law Maker’, (1972) 12 JSPTL 22, 22.

    [19] Lord Tom Bingham, ‘The Judge as Law Maker’, The Business of Judging (2000), 28.

    [20] Justice Kenneth Hayne, ‘Concerning Judicial Method – Fifty Years On’, Speech at Monash University, 17 October 2006 <www.hcourt.gov.au/speeches/haynej/haynej_17oct06.pdf> at 16 August 2007.

    [21] [1932] AC 532.

    [22] Ibid 580.

    [23] (1991) UKHL 12; [1992] 1 AC 599.

    [24] Ibid 616.

    [25] [1989] SLT 469.

    [26] Ibid 473.

    [27] For an examination of the development of Australian common law in a similar context, see Michael Coper, ‘Concern about Judicial Method’ [2006] MelbULawRw 17; (2006) 30(2) MULR 554.

    [28] Vivian Curran, ‘Romantic Common Law, Enlightened Civil Law: Legal Uniformity and the Homogenization of the European Union’ (2001) 7 Columbia Journal of European Law 63, 74.

    [29] Jeffrey Goldsworthy, ‘Legislative Sovereignty and the Rule of Law’, in Tom Campbell et al (eds), Sceptical Essays on Human Rights (2001), 76.

    [30] Kirby, above n 13.

    [31] Janet Albrechtsen, ‘The Judicial Counter-Revolution’, The Australian (Sydney), 1 July 2007 <http://blogs.theaustralian.news.com.au/janetalbrechtsen/index.php/theaustralian/comments/the_judicial_counter_revolution/P50/> at 16 August 2007.

    [32] Hayne, above n 20.

    [33] [2001] UKHL 25; [2002] 1 AC 45.

    [34] Youth Justice and Criminal Evidence Act 1999 (UK) s 41 (3)(b).

    [35] Ibid s 41(3)(c).

    [36] Above n 33 at 67–68.

    [37] Ibid 68.

    [38] Ibid 87.

    [39] Francesca Klug, ‘Judicial Deference under the Human Rights Act 1998’, (2003) 2 EHRLR 125, 128.

    [40] European Convention for the Protection of Human Rights and Fundamental Freedoms 1950

    [41] Tom Campbell, ‘Incorporation through Interpretation’, in Tom Campbell et al (eds), Sceptical Essays on Human Rights (2001), 97–98.

    [42] Conor Gearty, Principles of Human Rights Adjudication (2004), 52–53.

    [43] [2004] UKHL 30, [2004] 2 AC 557.

    [44] Ibid, per Lord Nicholls at 572. Contrast Jan van Zyl Smit, ‘The New Purposive Interpretation of Statutes: HRA Section 3 after Ghaidan v Godin-Mendoza(2007) 70(2) MLR 294, with Alison Young, ‘Ghaidan v Godin-Mendoza: Avoiding the Deference Trap’ [2005] PL 23.

    [45] Section 32(1).

    [46] A & Ors v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68.

    [47] Thomas Poole, ‘Harnessing the Power of the Past? Lord Hoffman and the Belmarsh Detainees Case’ (2005) 32(4) JLS 534, 557.

    [48] Ibid 537.

    [49] Ibid.

    [50] Keith Ewing, ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79, 92.

    [51] Ibid 98.

    [52] Martti Koskenniemi, ‘The Effects of Rights on Political Culture’, in Philip Alston et al (eds), The EU and Human Rights (1999), 115.

    [53] Ibid 110.

    [54] Campbell, above n 41, 81.

    [55] Sheehan, above n 5.

    [56] Melanie Phillips, ‘Liberty fades as rights talk grows’, The Age (Melbourne), 21 March 2007 <http://www.melaniephillips.com/articles-new/?p=495> at 16 August 2007. Curiously, Phillips rails against the emergence of both ‘cultural Marxism’ and ‘hyper-individualism’ under the UK HRA.

    [57] The Human Rights Act: the DCA and Home Office Reviews, Government Response to the Joint Committee on Human Rights’ Thirty-second Report of Session 2005-6 (2007), 3 <http://www.official-documents.gov.uk/document/cm70/7011/7011.asp> at 16 August 2007.

    [58] Gabrielle McKinnon, ‘The ACT Human Rights Act – The Second Year’, (Paper presented at the Australian Bills of Rights Conference, Canberra, 21 June 2006) <http://acthra.anu.edu.au/articles/Gabrielle%20McKinnon%20ACTHRA%20second%20year.pdf> at 16 August 2007.

    [59] Department for Constitutional Affairs, Review of the Implementation of the Human Rights Act (2006), 35 <http://www.dca.gov.uk/peoples-rights/human-rights/publications.htm> at 16 August 2007.

    [60] Ibid 37.

    [61] Sir Anthony Mason, ‘Legislative and Judicial Law Making’, (2003) 23 Adel LR 16, 21.

    [62] Henry Miller, The Air-Conditioned Nightmare (1945), 16–17.


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