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From Dialogue to Disagreement in Comparative Rights Constitutionalism





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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, From Dialogue to Disagreement in Comparative Rights Constitutionalism, was joint winner of the inaugural Holt Prize 2015.

Foreword by The Hon Chief Justice Robert S French AC
About the Author
Table of Cases
Table of Statutes

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 the framework for comparison
          A. Focusing on inter-institutional interaction
          B. Focusing on inter-institutional disagreement
          C. Why institutions?
          D. Why disagreement?
III. Other frameworks of comparison
          A. Incorporating all three institutions of government
          B. Incorporating the nuances of the traditional paradigms
          C. Emphasising the compromises associated with multi-stage rights review
          D. The case for a framework based on inter-institutional disagreement
IV.  Conclusion

4. Legislative supremacy

I.   Introduction
II.  Opportunities for, and costs of, indirect inter-institutional disagreement
III. Types of indirect inter-institutional disagreement
          A. Judicial review of administrative action
          B. Statutory interpretation
          C. Structural constitutional provisions
IV.  Conclusion

5. Judicial supremacy

I.   Introduction
II.  Direct inter-institutional disagreement
III. Opportunities for, and costs of, indirect inter-institutional disagreement
IV.  Expounding indirect inter-institutional disagreement
          A. Why the United States?
          B. Types of indirect inter-institutional disagreement
          C. Legitimacy
V.   Conclusion

6. Multi-stage rights review

I.   Introduction
II.  Direct inter-institutional disagreement
          A. Stage one: executive review
          B. Stage two: legislative committee review
          C. Stage three: judicial review
          D. Stage four: legislative override
          E. The cumulative effects of multi-stage rights review
          F. A culture of justification
          G. Deference
          H. Not necessarily weak or intermediate
III. The case for direct inter-institutional 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.   The hierarchy of laws
VII.  Comity
VIII. Bicameralism
IX.    An additional set of factors to help explain practice
X.      Conclusion

8. The United Kingdom

I.   Introduction
II.  Executive review
          A. Practice
          B. Analysis
III. Legislative committee review
          A. Practice
          B. Analysis
IV.  Judicial review
          A. Practice
          B. Analysis
V.   Legislative override
          A. Practice
          B. Analysis

9. Canada

I.   Introduction
II.  Executive review and legislative review
          A. Practice
          B. Analysis
III. Judicial review
          A. Practice
          B. Analysis
IV.  Legislative override
          A. Practice
          B. Analysis

10. New Zealand

I.   Introduction
II.  Executive review and legislative review
          A. Practice
          B. Analysis
III. Judicial review
          A. Practice
          B. Analysis
IV.  Legislative override
          A. Practice
          B. Analysis

11. Australia

I.   Introduction
II.  Executive review and legislative committee review
          A. Practice
          B. Analysis
III. Judicial review and legislative override
          A. Practice
          B. Analysis

12. Conclusion

I.    The importance and relevant point of context
II.   Responsible government and bicameralism
III. The rule of law
IV.  The separation of powers
V.    Other normative trade-offs
VI.  The limits of direct disagreement
VII. The next step



Julian R Murphy, InPrint, Law Institute Journal Victoria, May 2017
What better time to be reading this book than in the wake of a humble US District Court judge’s temporary stay on President Trump’s executive order prohibiting migration into the US from seven predominantly Muslim countries. This is exactly the sort of legal contest that animates Scott Stephenson’s brilliant first book.
         As its title suggests, Stephenson’s is a work of comparative constitutional law. It focuses on the means by which different countries, particularly Commonwealth countries, structure and manage tensions between the various arms of government as to the appropriate extent of rights protection. Stephenson persuasively argues that it is no longer illuminating to think in binary terms of legislative or judicial supremacy. The modern proliferation of legislative charters of rights, such as Victoria’s own Charter of Human Rights and Responsibilities Act, leads Stephenson to suggest a third model, which he calls “multi- stage rights review”.
         In his discussion of multi-stage rights review, Stephenson eschews the popular conception of “dialogue” between arms of government and instead prefers to describe the interaction as “disagreement”. The difference is not merely semantic. On Stephenson’s analysis, and it is a nuanced and insightful one, multi-stage rights review creates a positive and productive environment for institutional differences on rights protection.
         The book’s approach is an original one and there is no doubt this text will provide an important new perspective for students and scholars in the field of comparative constitutional law and also for legislative drafters in jurisdictions looking to experiment with a charter of rights.

Daniel Davison-Vecchione and Charlie Eastaugh, Public Law UK, April 2017
While Dr Stephenson’s first treatise, From Dialogue to Disagreement in Comparative Rights Constitutionalism is, in many respects, a continuation of this trend in public law scholarship, the project distinguishes itself admirably from existing veins within this literature. It achieves success with this commendable effort by adopting quite a novel framework through which to view judicial review and constitutionalism. This becomes a framework Stephenson then applies in later chapters to four major Commonwealth jurisdictions-the UK, Canada, Australia, and New Zealand. …
         Stephenson’s work makes an important contribution to the existing literature. We commend his excellent comparativism – especially with respect to the nuanced exposition of inter-institutional disagreements, which are common across the four jurisdictions. From Dialogue to Disagreement will undoubtedly become familiar to law librarians everywhere, and can be recommended to socio-legal scholars, those focused purely on constitutional doctrine, and the well-read general reader. Those seismic shifts may not cease anytime soon, but at least we have new tools to examine whatever rises from the deepest constitutional strata.

Queensland Law Reporter – 16 December 2016 – [2016]
In 2015 Dr Scott Stephenson was one of the two inaugural winners of the prestigious Holt Prize, a biannual publishing award which recognises excellence in unpublished legal works of an academic or practical nature, named after the late Christopher Holt, a co-founder of the Federation Press. This book is the product of that award.
         “From Dialogue to Disagreement” considers the constitutional approaches to rights protection in a number of Commonwealth jurisdictions. It is of particular and timely relevance to Queensland, where the government recently announced its intention to introduce a Human Rights Act based on the Victorian Charter of Human Rights and Responsibilities.
         Dr Stephenson describes the human rights instruments which have developed in Australia, Canada, New Zealand and the United Kingdom as examples of “multi-stage rights review”. These frameworks depart from the previous dichotomy between judicial supremacy (through judicial review) and legislative supremacy (through parliamentary sovereignty) to involve a number of different institutions in sometimes novel ways.
         The innovative premise of this book is that these approaches – though commonly known as “dialogue models” of human rights protection – are best analysed by reference to the disagreement, rather than dialogue, that they foster between institutional actors. This striking yet persuasive approach is justified by close investigation of the difficult, controversial and complex nature of human rights matters and issues that have arisen in each jurisdiction.
         Dr Stephenson focuses on three questions arising from the adoption of multi -stage rights review in the four Commonwealth countries. First, he considers how these models differ from pre-existing systems grounded in an orthodox dichotomy between judicial and legislative supremacy. Second, he asks why, if at all, one should prefer the “Commonwealth approach” to rights constitutionalism over traditional paradigms. Third, he queries what compromises must be struck in the course of adopting human rights charters and the implementation of the enacted instruments.
         As the Honourable Chief Justice of Australia says in his Foreword, this book is both a thoughtful and penetrating work which casts a fresh perspective on modern approaches to rights protection in Commonwealth jurisdictions. As such, it is a valuable and timely work and a worthy recipient of one of Australia’s most prestigious publishing awards.

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