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R E V I E W E S S AY
CONSTITUTIONAL ORTHODOXY IN THE
UNITED KINGDOM AND AUSTRALIA:
THE DEEPENING DIVIDE
Constitutional Re view under the UK Human Rights Act
by Aileen Kavanagh (Cambridge: Cambridge
University Press, 2009) pages i–ix, 1–455. Price
A$97.95 (paperback). ISBN 978-0-521-68219-0.
A D R I E N N E S T O N E *
Aileen Kavanagh’s Constitutional Review under the UK Human Rights Act contains a lucid explanation and strong defence of the Human Rights Act 1998 (UK) c 42. On her account the Human Rights Act 1998 (UK) c 42 is very close to a formally entrenched bill of rights, conferring strong powers of constitutional review and insulated against most forms of repeal. This review assesses these claims and concludes that the argument, though powerful, does not fully justify its central claims. In the latter part of the essay, the review uses Kavanagh’s account to reflect upon the growing divide between Australia and the United Kingdom as to fundamental understandings about public law.
C O N T E N T S
I Introduction .............................................................................................................. 837 II Interpretation of the HRA: Sections 2, 3 and 4 .................................................... 838 III Proportionality under the HRA ............................................................................. 840 IV The Nature of the HRA as a ‘Bill of Rights’ ........................................................... 843 V Justification for Constitutional Review ................................................................. 845 A Will Courts Protect Rights? ....................................................................... 846 B Can Courts Protect Rights? ....................................................................... 847
- (^) BA, LLB (UNSW), LLM, JSD (Columbia); Professor, Melbourne Law School, The University of Melbourne; Director, Centre for Comparative Constitutional Studies, The University of Melbourne. Thanks are due to Aileen Kavanagh for graciously reading and responding to my critique of her work, to Claudia Geiringer for helpful comments on an earlier draft and to Martin Clark for editorial and research assistance.
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VI An Australian Comparison .................................................................................... 850 A The Constitutional Status of the s 36 Declarations Power ..................... 852 B The Constitutional Status of the s 32 Interpretation Power and the Limitation Clause ........................................................................................ 852 C Competing Conceptions of the Judicial Role .......................................... 855 VII Conclusion ................................................................................................................ 857
I I N T R O D U C T I O N
Aileen Kavanagh’s book Constitutional Review under the UK Human Rights Act^1 aims to describe and defend the Human Rights Act 1998 (UK) c 42 (‘HRA’) and the approach of the United Kingdom courts to its interpretation. It is an extremely impressive work that combines a thorough doctrinal analysis of a large body of complex case law with sustained and original arguments on larger themes. The book is in three parts: in the first, Kavanagh addresses statutory inter- pretation under the HRA; the second part addresses the nature and proper place of judicial deference under the HRA; and the third part contains an analysis of the constitutional status of the HRA and a defence of the institu- tion of constitutional review.^2 In each part, Kavanagh’s account is strongly ‘court-centred’, giving the judiciary the principal role in determining the meaning of the rights protected by the HRA. Specifically, she argues that the power of interpretation found in s 3(1) confers a power to interpret legislation to conform to rights protected by the HRA even if to do so would be contrary to the intention of Parliament. 3 Further, the power to issue declarations of incompatibility under s 4 confers on courts a power to render inconsistent legislation invalid.^4 At least that is its practical effect, despite the provision that a declaration of incompatibility ‘does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given’. 5
(^1) Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge University Press, 2009). (^2) For reasons of space, this review focuses on the first and third parts, largely omitting commentary on the chapters in Part II on deference. (^3) HRA s 3(1) reads: ‘So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Conven- tion rights’. (^4) Kavanagh, Constitutional Review, above n 1, 281–92. (^5) HRA s 4(6)(a).
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this she means that s 3(1) can be used to reach an interpretation contrary to the intention of Parliament (that is, contrary to the intention that would have been ascribed to Parliament under rules of statutory interpretation as they existed prior to the enactment of the HRA). More specifically, she takes the view that a court may, in effect, amend the statute by reading it as if words were added to the statutory text, giving it a more expansive meaning. Alterna- tively, courts may give statutory language a narrower interpretation than rules of statutory interpretation might otherwise permit. Her argument relies partly on the decision of the House of Lords in Ghaidan v Godin-Mendoza^11 but it is also derived from her understanding of statutory interpretation. Critics of the courts’ use of s 3(1) rely, Kavanagh argues, on a false conception of statutory interpretation as entirely concerned with determining ‘linguistic meaning’ that can be ‘discovered’. To the contrary, she argues, statutory interpretation necessarily involves evaluative reasoning as legislation is drafted in broad terms, the interpretation of which requires judgement and must then be justified in terms of political morality.^12 There is, therefore, no plausible conception of judicial reasoning pursuant to which judges interpreting the HRA — or any other statute for that matter — can be cast as simply implementing a ‘discoverable meaning’ of the statute. Kavanagh also claims that the presumption enacted by s 3(1) is rebuttable only where an interpretation conforming to ECHR rights would be contrary to ‘fundamental features’ of the statute under consideration^13 or where such an interpretation would involve making ‘radical’ decisions that would require legislative deliberation.^14 The prominence given to s 3(1) in this analysis of the scheme of the HRA is matched by the relative insignificance attributed to s 4. Kavanagh adopts Lord Steyn’s conception of the declaration of incompatibility as ‘a measure of last resort’. 15 Her argument is partly that this position follows from the narrowly defined nature of exceptions to the s 3(1) presumption. Because judges will usually be able to reinterpret law to conform to ECHR rights, it
and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010). (^11) [2004] 2 AC 557. This case is cited and summarised in Kavanagh, Constitutional Review, above n 1, 88–91. (^12) Kavanagh, Constitutional Review, above n 1, 30. (^13) A ‘fundamental feature’ is not simply a provision central to the purpose of the statute. Rather it is one ‘so embedded in the fabric of the statute, that it cannot be removed or changed by way of the necessarily piecemeal tool of judicial rectification’: ibid 39 (emphasis altered). (^14) Ibid. (^15) Ibid 121, quoting Ghaidan v Godin-Mendoza [2004] 2 AC 557, 573 [39].
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follows that they will only rarely have to resort to s 4 and declare legislation incompatible. Kavanagh also justifies this interpretation of s 4 as a matter of institutional incentive and as a matter of justice. Judges will naturally prefer a s 3(1) interpretation over a s 4 declaration, given that in most cases a declaration will not provide a legal remedy for the individual litigant. Thus a preference for s 3(1) over s 4 respects the importance of doing justice to litigants. Kavanagh considers, and quickly rejects, the argument that more frequent use of s 4 would promote ‘dialogue’. Interpretation under s 3(1), she argues, also promotes dialogue: Parliament may choose to respond to, or to accept, a s 3(1) interpretation just as it can a declaration of incompatibility, while at the same time allowing a remedy for the individual.^16 As I have related it, Kavanagh’s account of the relationship between ss 3(1) and 4 is an emphatic argument for the primacy of the interpretation power over the power to give declarations of inconsistency. The final element of her analysis of the basic structure of the HRA lies in s 2, which imposes an obligation on courts to ‘take into account’ any relevant case law produced by the European Court of Human Rights (‘ECtHR’) in Strasbourg. On Ka- vanagh’s reading, s 2 is not a weak obligation to consider, rather than follow, the case law of the ECtHR. On the contrary, ECtHR precedent has ‘a binding status similar to that accorded by the House of Lords to its own precedents’.^17 Significantly, Kavanagh holds that the ECHR operates both as a ‘floor’ and as a ‘ceiling’.^18 The United Kingdom courts can neither limit a right that is clearly and consistently applied by the ECtHR, nor can they ‘outpace’ Strasbourg.^19
III P R O P O RT I O NA L I T Y U N D E R T H E HR A
The second part of the book addresses the question of deference. Particularly significant for this review is Kavanagh’s account of the proportionality doctrine as used by the United Kingdom courts. To begin with, Kavanagh describes the three separate inquiries involved in proportionality analysis, commonly known as ‘suitability’ or ‘necessity’, ‘minimal impairment’ and ‘balancing’, quoting a well-known formulation of the Privy Council:
(^16) Kavanagh, Constitutional Review, above n 1, 128–32. (^17) Ibid 144. (^18) Ibid 160–1. (^19) Ibid 153.
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ality are different ways of asking the same question, namely, whether an infringement of Convention rights is justifiable in the context of the particu- lar case’.^26 In doing so, she methodically addresses claims that proportionality is in- herently less deferential (or more ‘intense’) than the Wednesbury standard.^27 Properly understood, she argues, proportionality does not allow the substitu- tion of the court’s assessment of the merits of a law. Rather, like Wednesbury, it requires an assessment of whether a decision is within a range of rational or reasonable decisions. Conversely, the Wednesbury unreasonableness standard, like proportionality, requires a consideration of the ‘balance struck’ between competing interests. Finally, like proportionality, Wednesbury unreasonable- ness is inherently variable and is not inherently less intrusive than propor- tionality. As she sums up her view: ‘the form of the test adopted is less important than the willingness or ability of the courts to interfere with the decisions of the elected branches’. 28 But though she considers proportionality to be conceptually similar to previous approaches and not necessarily a more intensive form of review, Kavanagh does argue that proportionality has distinct advantages. First, although she argues that proportionality is not inherently less deferential, in practice it has legitimised increased scrutiny of government action.^29 The Wednesbury standard had been so long associated with highly deferential review of government action that the adoption of the proportionality standard marked an important break with that tradition, allowing for more intense review, aided by the clear placing of the onus of proof on the state or decision- maker defending its actions. Lastly, and echoing many analyses of proportion- ality, she claims that proportionality provides a more carefully struc- tured inquiry.^30
(^26) Kavanagh, Constitutional Review, above n 1, 246. I have made a similar argument in the context of Australian constitutional law. Namely, I argue that ‘proportionality’ is conceptually equivalent to the ‘reasonably appropriate and adapted’ standard: see Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668. (^27) Kavanagh, Constitutional Review, above n 1, 245–7. (^28) Ibid 251. (^29) Ibid 253. (^30) Ibid 255. For other analyses, see the sources cited by Kavanagh: at 255 n 101.
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IV T H E N AT U R E O F T H E HR A A S A ‘B I L L O F R I G H T S ’
In the final part of the book, Kavanagh advances her argument that the HRA closely resembles, and operates in practice as, an entrenched bill of rights. In her earlier argument on s 3(1), Kavanagh walked a fine line by seeking to emphasise the strength of the interpretive power conferred by s 3(1) and the continuity of the HRA with previous practice.^31 In the same vein, she now argues that the HRA is very close to an entrenched bill of rights with a power for courts to ‘strike down’ legislation but at the same time maintains that it represents a modest realignment of the constitutional order. To make this argument, she first casts the s 4 declaration of incompatibility as something close to a power to strike down legislation. As a matter of practice, she points out, declarations of incompatibility have invariably met with a legislative response designed to ensure compliance with the violated right. This response is more, she argues, than evidence of the political difficulty of ignoring a declaration. The full strength of s 4 must take into account the legal repercussions — an almost inevitable adverse finding by the ECtHR. Thus s 4 identifies a legal wrong, and ignoring a declaration will have legal consequences that make it in effect impossible for the Parliament not to respond. The result brings s 4 very close to a strike-down power.^32 This argument foreshadows her overall position with respect to the HRA. Despite the lack of formal supremacy, Kavanagh regards the HRA as akin to an entrenched, formally supreme bill of rights: it is legally pervasive (provid- ing a framework against which all other statutes are tested),^33 it is not subject to the doctrine of implied repeal,^34 and express repeal is both politically unlikely^35 and — unless the HRA was replaced with a similar, perhaps even more rights-protective, regime — would involve repudiating the obligations assumed under the ECHR.^36 The HRA is thus both ‘relatively entrenched’ and
(^31) Ibid 108–9. (^32) Ibid 281–92, 320–2. (^33) Ibid 294–5. (^34) Ibid 315, 317. (^35) Kavanagh puts store in the fact that so far, even in the contexts of national security and criminal justice (the two areas on which political statements recommending repeal or amendment have been made), the Government has never ignored a declaration of incompat- ibility, making it ‘unlikely that they would be prepared to incur the far greater political cost of repealing or restricting’ the HRA: Kavanagh, Constitutional Review, above n 1, 305. (^36) Ibid.
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judges believe that it is inappropriate for them to change the law on a particu- larly sensitive and controversial issue, because such a decision would have a greater chance of being accepted in society if it were introduced by the elected branches of government. 44
With the principle of parliamentary sovereignty confined within the bounds of ‘deference’, Kavanagh goes on to reject any suggestion that it might be relevant to determining the relative appropriateness of the remedies provided by ss 3(1) and 4 or the place of parliamentary intention in interpretation under s 3(1). She therefore specifically rejects Jeffrey Goldsworthy’s account of statutory interpretation, pursuant to which adherence to ‘legislative intention’ is indispensable to the preservation of ‘legislative supremacy’.^45
V J U S T I F I C AT I O N F O R C O N S T I T U T I O NA L R E V I E W
For much of the book so far, Kavanagh’s argument is either ‘analytical’ or ‘conceptual’ (in the sense that she argues that her position is derived from agreed or incontrovertible premises), ‘historical’ (in the sense that she argues that her positions reflect established or emerging practice) or ‘doctrinal’ (in that she relies upon the decided case law under the HRA).^46 In the final three chapters of the book, Kavanagh shifts gears to a defence of constitutional review as a matter of political morality. Kavanagh defends constitutional review as the best way to protect rights. In support of this position, she makes a range of arguments designed to show the institutional advantages of courts: that they are better placed to resist the pressures of partisan politics and short-term interests, and to protect minorities inade- quately represented in majoritarian politics. She also makes a range of arguments about the special capacity of adjudication of individual disputes to allow individual participation and to focus upon the circumstances of particular cases. Further, she emphasises the capacity of constitutional litigation to produce broader cultural and political effects by raising public
(^44) Ibid 193. (^45) Ibid 332–6. See Jeffrey Goldsworthy, ‘Parliamentary Sovereignty and Statutory Interpretation’ in Rick Bigwood (ed), The Statute: Making and Meaning (LexisNexis, 2004) 187. See also Richard Ekins and Jeffrey Goldsworthy, ‘The Reality and Indispensability of Legislative Inten- tions’ (2014) 36 Sydney Law Review 39. (^46) For the most part, Kavanagh defends the record of courts with respect to the HRA. But she is not wholly uncritical: see, eg, Kavanagh, Constitutional Review, above n 1, 54–5, where she critiques the ‘semantic lottery’ of Ghaidan v Godin-Mendoza [2004] 2 AC 557.
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consciousness about rights as well as focusing legislative attention during the lawmaking process. In defending this position, Kavanagh is on very well-travelled ground. Her account is nonetheless interesting, insightful and at points original. It is hardly surprising, however, that it fails to put the debate to bed. Kavanagh’s argument is at its most effective when she draws attention to an imbalance in the accounts of the relative competencies of courts and parliaments that she finds in some arguments against constitutional review.^47 Her defence of the institutional advantages of courts is, however, less convincing. A number of questions about Kavanagh’s confidence in courts spring to mind.
A Will Courts Protect Rights?
The first of these is whether courts will really be able to resist Parliament on rights questions over the long term. Despite the apparent insulation of courts from the political process, British ‘political constitutionalists’ have long been suspicious of the politics of courts and have questioned the capacity of courts to resist parliamentary majorities and adequately protect rights.^48 Kavanagh’s first response to these arguments is to reject the extension of this critique to the performance of the courts under the HRA.^49 Kavanagh finds it especially significant that, even in the dramatic times following the 9/11 and 7/7 terrorist attacks, the United Kingdom courts have resisted Parliament and used the HRA to enforce human rights standards and limit its powers to regulate terrorism.^50 But the life of the HRA so far is a rather short span of time over which to make that assessment. Certainly, courts in other countries — most notably the United States — have shown only a limited capacity to resist legislatures when their record is viewed over the longer term.^51 It is possible that the United Kingdom courts will remain immune to the pressure affecting courts in the United States, but Kavanagh has not provided us with a reason for such confidence. Indeed, her argument for a
(^47) Kavanagh, Constitutional Review, above n 1, 376. (^48) Kavanagh discusses in particular the work of Keith Ewing and Adam Tomkins: ibid 381–8. See Adam Tomkins, ‘In Defence of the Political Constitution’ (2002) 22 Oxford Journal of Legal Studies 157; Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge University Press, 2007). (^49) See also Stephen Gardbaum, ‘Reassessing the New Commonwealth Model of Constitutional- ism’ (2010) 8 International Journal of Constitutional Law 167. (^50) Kavanagh, Constitutional Review, above n 1, 381–5. (^51) See Robert G McCloskey, The American Supreme Court (University of Chicago Press, 5 th (^) ed, 2010).
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well as disagreement about how best to decide rights questions) to question the suitability or capacity of courts to resolve these issues.^54 Kavanagh does make arguments as to the institutional advantages of courts, which she has advanced in other contexts in response to the Wal- dronian argument.^55 But while she makes a strong case for the inclusion of adjudication as an element of the decision-making process, Kavanagh has not explained why that power should be final and not subject to revision. If one takes reasonable disagreement about rights seriously and recognises the potentially negative effects of constitutional review, there should be a real possibility for parliaments to override judicial decisions. The case for some kind of parliamentary check on the judiciary is strengthened further if one accepts (as Kavanagh does) that the principle of parliamentary sovereignty, while qualified, has some role to play in British constitutionalism. The more practical point is that the institutional limitations of courts mean that they may unwittingly use their powers in counterproductive ways. Kavanagh’s argument appears to proceed on the basis that either courts will improve the status quo prior to the HRA or they will leave the pre-HRA position in place. However, constitutional review might sometimes make the situation worse. It is possible that judicial decisions on constitutional rights will misjudge their real world effects, be ineffective to produce the social change needed to realise rights protection, or provoke backlash that hardens conflict or debilitates legislative processes.^56 If any of these possibilities are taken seriously, then the argument for ‘strong form’ constitutional review considerably weakens.^57
(^54) See Jeremy Waldron, Law and Disagreement (Clarendon Press, 1999). (^55) Aileen Kavanagh, ‘Participation and Judicial Review: A Reply to Jeremy Waldron’ (2003) 22 Law and Philosophy 451. (^56) Mark Tushnet, Taking the Constitution Away from the Courts (Princeton University Press,
- 138–53. (^57) To the extent that Kavanagh recognises these possibilities, her analysis suggests that they are to be dealt with through the mechanism of deference. The possibility of backlash or other counterproductive effects provide a reason for judges to defer to parliament: see also Aileen Kavanagh, ‘Judicial Restraint in the Pursuit of Justice’ (2010) 60 University of Toronto Law Journal 23. But this argument leaves the judgement as to the likelihood of these effects to courts themselves. The same institutional limitations which make judges unable always to assess the likely effects of their judgments would surely also cloud their capacity to predict when backlash and other counterproductive effects are likely. Put simply, courts are not well placed to understand the full effects of their judgments and may well misjudge when defer- ence is due. For these reasons, deference cannot be fully relied upon as a response to the institutional limitations of courts.
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In this light, it is worth remembering that the burden of Kavanagh’s argu- ment is not simply to justify the enactment of the HRA, nor to provide an argument for some kind of a judicial role in the resolution of rights questions. She needs to provide an argument for her interpretation of the HRA, with its highly court-centric features. In other words, hers is not an argument for weak form judicial review as it is usually understood. It is an argument for a strong form of judicial review, or at least something very close to it. Finally, the possibility of error and unintended negative effects dissolves the apparent tension she identified in democratic scepticism. It is not incon- sistent to criticise courts for offering only weak resistance to legislative majorities and to criticise their capacity to make good decisions on the occasions that they do act against legislatures. It is possible that judicial review might be both a weak instrument and not an especially good tool for rights protection when it is wielded. 58 This view of constitutional review is bleak indeed, but it remains a possibility despite Kavanagh’s defence. In short, then, the case for the strong form of constitutional review that Kavanagh advocates is weaker than her arguments admit. Both the theoretical underpinnings of constitutional review and its capacity to protect constitu- tional values remain deeply contested by arguments Kavanagh does not fully counter. The explanation for the absence of a full justification may lie in the struc- ture of the book. The early parts carefully detail how the HRA operates, and it is from this analysis that Kavanagh appears to draw her claim that the HRA is quasi-entrenched and implements a strong form judicial review. It is her descriptive account, which shows that the HRA in practice is quite different from the weak ‘dialogic’ model that it appears to implement, that provides the foundation of her defence of the HRA. Yet when the argument shifts from a description and analysis to justifica- tion, something more is required. In this respect, the deepest worry inspired by this account is not its defence of judicial review per se as its defence in this context. Whatever the merits of strong forms of judicial review, it is especially concerning that the HRA was publicly defended — including in formal parliamentary proceedings^59 — as preserving an orthodox understanding of parliamentary sovereignty. Kavanagh’s account thus justifies the implementa- tion of entrenched constitutionalism with strong form rights review in the
(^58) Mark Tushnet holds something like this view of judicial review: see Tushnet, above n 56, 153. Admittedly his view is formed in relation to strong form judicial review, but Kavanagh’s argument is for a form of judicial review that approaches strong form review. (^59) See Kavanagh, Constitutional Review, above n 1, 14.
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Momcilovic^64 on various aspects of the Charter.^65 Three central points of distinction emerge. First, the kind of interpretation accepted in Ghaidan v Godin-Mendoza (a ‘remedial’ interpretation) 66 was not permitted by the Charter.^67 Rather the reference to ‘purpose’ in s 32 was understood as a reference to legislative ‘intention’ ascertained by ordinary means of statutory interpretation, and therefore the section does not authorise any departure from parliamentary intention.^68 Second, unlike the United Kingdom courts, which have apparently embraced proportionality analysis as a method of determining the limits on rights, Momcilovic raises questions about the ‘balancing’ task that proportionality requires.^69 Finally, the High Court allows only a limited operation for s 36 of the Charter, the declaration power. 70 The basis of these findings lies in the distinctly Australian constitutional context and the separation of judicial power that the Constitution requires. Two principles of Australian constitutional law are especially relevant:
1 The principle from R v Kirby; Ex parte Boilermakers’ Society of Australia (‘Boilermakers’’), that courts formed under ch III of the Constitution (that is, the federal courts) may exercise only the ‘judicial power of the Com- monwealth’ together with incidental non-judicial powers;^71 and
2 A related principle, from Kable v Director of Public Prosecutions (NSW) (‘Kable’), that applies to state courts and arises from the conferral on them of a power to exercise federal jurisdiction.^72 Though not bound by all the
(^64) (2011) 245 CLR 1. (^65) See Will Bateman and James Stellios, ‘Chapter III of the Constitution, Federal Jurisdiction and Dialogue Charters of Human Rights’ (2012) 36 Melbourne University Law Review 1. (^66) [2004] 2 AC 557, 577 [50] (Lord Steyn). (^67) Momcilovic (2011) 245 CLR 1, 47–8 [46], 55 [62] (French CJ), 83–7 [146], 92–3 [170]–[171] (Gummow J), 123 [280] (Hayne J), 210 [544]–[545] (Crennan and Kiefel JJ), 250 [684] (Bell J). (^68) Ibid 50 [50] (French CJ), 92 [170] (Gummow J), 123 [280] (Hayne J), 175 [441] (Heydon J), 217 [565]–[566] (Crennan and Kiefel JJ), 250 [684] (Bell J). (^69) Ibid 49–50 [49]–[51] (French CJ), 87–8 [150]–[152] (Gummow J), 123 [280] (Hayne J), 211 [546] (Crennan and Kiefel JJ). (^70) Ibid 59–70 [75]–[100] (French CJ), 93–7 [172]–[189] (Gummow J), 123 [280] (Hayne J), 218 [567], 219–20 [574]–[576] (Crennan and Kiefel JJ), 241 [661] (Bell J). (^71) (1956) 94 CLR 254, 271–2 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). Strictly, we are referring here only to the ‘second limb’ of that principle. In addition, ch III requires that only courts formed in accordance with ch III can exercise the judicial power of the Common- wealth (the ‘first limb’ of the Boilermakers’ principle): at 270. The High Court’s judgment was affirmed on appeal to the Privy Council: A-G (Cth) v The Queen (1957) 95 CLR 529. (^72) (1996) 189 CLR 51.
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principles derived from ch III, a state court may not exercise a function inconsistent with the ‘institutional integrity’ necessary for the continued exercise of federal jurisdiction.
The High Court’s findings were complex, but it ultimately found that the core provisions of the Charter were consistent with these principles and therefore valid. However, there were significant qualifications to these findings.
A The Constitutional Status of the s 36 Declarations Power
With respect to s 36, the Court unanimously found that the power to issue a declaration was not a ‘judicial power’ because it had no effect on the resolu- tion of the legal issues before the Court.^73 By majority, the Court also held that it was not a power ‘incidental’ to the exercise of judicial power.^74 For this reason, the Boilermakers’ principle prevents ch III courts from exercising the power conferred by s 36, and the Parliament from conferring any such powers on a ch III court. In addition, for reasons that turn on the operation of the Judiciary Act 1903 (Cth), the power cannot be exercised by non-ch III courts in the exercise of federal jurisdiction.^75 However, the declaration power can be exercised by state courts in the exercise of state jurisdiction because the High Court held, also by majority, that the power conferred by s 36 was, nonethe- less, consistent with the institutional integrity of state courts.^76
B The Constitutional Status of the s 32 Interpretation Power and the Limitation Clause
With respect to s 32, which was also found to be constitutionally valid,^77 there are other important constitutional caveats. First, had the High Court accepted
(^73) Momcilovic (2011) 245 CLR 1, 65 [89] (French CJ), 96 [184]–[185], 96–7 [187] (Gummow J), 123 [280] (Hayne J), 185 [457] (Heydon J), 222 [584] (Crennan and Kiefel JJ), 241 [661] (Bell J). (^74) Ibid 65–6 [90]–[91] (French CJ), 96–7 [187] (Gummow J), 123 [280] (Hayne J), 241 [661] (Bell J). Crennan and Kiefel JJ dissented on this point: at 223–9 [589]–[606]. (^75) Ibid 68–70 [98]–[100] (French CJ), 99–100 [201]–[205] (Gummow J), 123 [280] (Hayne J), 224–6 [593]–[597] (Crennan and Kiefel JJ), 241 [661] (Bell J). (^76) Ibid 66–8 [92]–[97] (French CJ), 226–9 [598]–[606] (Crennan and Kiefel JJ), 241 [661] (Bell J). Gummow J, Hayne J and Heydon J dissented on this point: at 93–7 [175]–[188] (Gummow J), 123 [280] (Hayne J), 185 [457] (Heydon J). (^77) The majority (Heydon J dissenting) held that s 32 did not authorise remedial interpretations. It follows that the section does not confer a role on the courts that could be said to be incon- sistent with judicial process and therefore invalid: ibid 50 [50]–[51] (French CJ),
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Section 7(2) confers a function that cannot be exercised by courts (state or federal) because it is too vague to be capable of application by a court and involves a kind of judgement that is impermissible for judges to make. The greatest flaw is that it requires a right to be balanced against other rights and interests. Here is how Heydon J describes the problem:
s 7(2) does not talk of ‘balancing’ … [but] that is the process it involves. But the things to be balanced or weighed are not readily comparable — the nature of a right and various aspects of a limitation on it, the nature of a right and other rights, … could include many matters of practical expediency of which courts know nothing, social interests about which it is dangerous for courts to specu- late and considerations of morality on which the opinions of the governed may sharply differ from those of the courts. It is for legislatures to decide what is ex- pedient in practice, what social claims must be accepted, and what moral out- comes are to be favoured — not courts. 83
In finding s 7(2) invalid, Heydon J took the view that the power is not only non-judicial (which would prevent its application by federal courts like the High Court which are created pursuant to ch III of the Constitution), but is also so deeply incompatible with the judicial role that state courts are also barred from applying it.^84 Concerns along these lines may well be underlying the other judges’ reasons as well. That much is strongly suggested by French CJ. In particular, in explaining his view that s 7(2) is not part of the interpretive process, French CJ said the following:
the justification of limitations on human rights is a matter for the Parliament. That accords with the constitutional relationship between the Parliament and the judiciary which, to the extent that it can validly be disturbed, is not to be so disturbed except by clear words.^85
It is also suggested by the following passage in the judgment of Crennan and Kiefel JJ who, having ruled out the possibility that s 7(2) operates with ss 32 and 36, concluded:
It is not necessary to determine whether [s 7(2)] has any other consequences, although it is difficult to discern that it might. It might operate as a statement of
(^83) Ibid 171 [430]. (^84) Ibid 172–5 [433]–[439]. (^85) Ibid 44 [36].
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principle directed to the legislature, but it forms no part of the role of the courts …^86
It seems, therefore, that, according to a majority of the High Court in Momci- lovic, the role imposed by s 7(2) is one for the legislature and not the courts. These passages do not address proportionality analysis directly. However, they do indicate that the High Court is uncomfortable about elements of that form of analysis. After all, the balancing that so troubles Heydon J, which he claims will bring courts to question the wisdom of public policy, is part of the proportionality analysis which s 7(2) appears to contemplate.
C Competing Conceptions of the Judicial Role
This long digression into some of the more arcane aspects of Australian constitutional law is made to underscore the vast differences between Austral- ia and the United Kingdom when it comes to judicial review of rights. The United Kingdom courts, at least on Kavanagh’s analysis, have strong review powers pursuant to a quasi-entrenched HRA. By contrast, the High Court in Momcilovic limits the application of such charters, giving the Australian courts weaker powers of interpretation, limiting the power of declarations and, it seems, limiting the application of a general limitations clause (and the proportionality analysis it would entail) in the course of applying such a provision. In short, while the United Kingdom courts appear to have assumed a stronger power of judicial review than initially intended or expected, the Australian courts are determinedly proceeding in the opposite direction and declining to exercise powers conferred upon them. Clearly, a very different set of considerations are at play in Australia. The explanation obviously lies in its written constitution and the distinct demands of ch III. Yet, on closer reflection, the depth of the difference remains puz- zling. The High Court’s reasoning is driven by a conception of what is intrinsic to the nature of a court and the exercise of judicial power. The concept of judicial power is constitutionally defined, yet it also draws on traditional understandings of the role of courts.^87 On such questions,^88
(^86) Ibid 220 [575]. (^87) Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 357 (Griffith CJ); Boilermak- ers’ (1956) 94 CLR 254, 307 (Williams J). (^88) The historical functions of courts are relevant to the determination of the nature of judicial power: see, eg, Pasini v Mexico (2002) 209 CLR 246, 267 [59] (Kirby J), discussing the ‘cha- meleon power’. See also Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia (LexisNexis Butterworths, 3rd^ ed, 2012) 506–7 [9.19].
