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Vol 21 No 11 Nov/Dec 2016

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From Dialogue to Disagreement in Comparative Rights Constitutionalism

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ISBN13: 9781760020675
Published: September 2016
Publisher: The Federation Press
Country of Publication: Australia
Format: Hardback
Price: £58.00



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In recent decades, Australia, Canada, New Zealand and the United Kingdom have enacted bills of rights containing a number of innovative features that distinguish them from the bills of rights found in most other countries. They have consequently challenged judges, legislators and scholars to rethink a number of foundational issues in the field of rights constitutionalism, including the compatibility of rights-based judicial review with democratic self-government (the counter-majoritarian difficulty), the legislature’s role in the protection of rights, and the limits of constitutional design.

This book proposes a new theoretical framework for analysing these issues that moves away from existing approaches that focus on the concept of dialogue. It argues that inquiry should start with the types of disagreement between the three arms of government on rights issues that different forms of rights constitutionalism facilitate. This framework helps us answer three questions about the bills of rights in these four Commonwealth countries. How do they differ from the pre-existing constitutional approaches to the protection of rights? Why, if at all, should we consider the Commonwealth’s approach to rights protection over the more traditional models? What compromises must be struck when adopting a bill of rights of this variety?

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Subjects:
Other Jurisdictions , Australia
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