Constitutional reengineering: Dialogue s migration from Canada to Australia

Transcription

1 The Author Oxford University Press and New York University School of Law. All rights reserved. For permissions, please Constitutional reengineering: Dialogue s migration from Canada to Australia Scott Stephenson* Foreign sources affect the development of constitutional systems in a variety of ways. In this article, I examine the intentional modification, or reengineering, of foreign constitutional ideas. The study of constitutional reengineering offers insights into how and why actors use foreign constitutional ideas and informs analysis of convergence and divergence among constitutional systems. To highlight the process and implications of constitutional reengineering, I analyze dialogue s migration from Canada to Australia. Canadians develop the idea of dialogue to differentiate its Charter of Rights and Freedoms from the United States Bill of Rights, suggesting that the Charter facilitates unique forms of institutional interaction, or dialogue, between courts and legislatures on the meaning of rights. Australians appropriate and reengineer the idea, expanding dialogue to include the executive and public and reorienting it to differentiate Australia s statutory form of rights protection from the status quo ante, namely a system of legislative supremacy. This study of reengineering complicates existing comparative analyses of rights protection in the Commonwealth, which suggest these rights instruments establish a middle ground between the paradigms of judicial and legislative supremacy. First, debates about dialogue in Australia and Canada underscore the difficulty in what it means to establish a middle ground in the context of rights protection. Second, Australia s reengineered idea of dialogue emphasizes the importance of examining not only which institution gets the final say, the typical means of conceptualizing the middle ground, but also the dynamics of the law making process. * Tutor-in-Law & J.S.D. Candidate, Yale University. I thank Bruce Ackerman, James Fowkes, Janet Hiebert, Lisa Kerr, Kim Pham and Tom Smyth for their helpful discussions and insightful comments. I presented an earlier version of this paper at the Law & Society Association International Conference, Hawaii, June 5, scott.stephenson@aya.yale.edu. I CON (2013), Vol. 11 No. 4, doi: /icon/mot041

2 Constitutional reengineering Introduction The migration of constitutional ideas across jurisdictions raises a number of analytically interesting and important questions. 1 One that generates extensive disagreement, especially in the United States, is whether courts should employ foreign sources in the task of constitutional interpretation. 2 By contrast, looking beyond one s borders is a well-established and uncontroversial practice when debating, designing and drafting constitutional documents. 3 During these stages, which are the focus of this paper, the principal inquiries are how and why actors 4 engage with foreign sources and what effect comparative engagement has on patterns of convergence and divergence among constitutional systems. 5 Actors adopt both positive and negative postures toward foreign sources; the experiences of other countries provide models to follow but also anti-models to avoid. The global catalogue of constitutional systems supplies a variety of principles, provisions, and structures, some of which actors seek to incorporate, others they seek to eschew. Negative engagements with foreign sources are often singled out for analysis because they deepen our understanding of constitutional development and identity. Sujit Choudhry s study of the Lochner era as an anti-model during the drafting of the Canadian Charter of Rights and Freedoms 1982 (the Canadian Charter ), for example, challenges universalist and particularlist accounts of constitutional construction by suggesting it is neither wholly the product of hegemonic global forces nor wholly a response to singular domestic conditions. 6 In this article, I discuss constitutional reengineering as another form of comparative engagement capable of yielding valuable insights into the dynamics of migration and questions of constitutional similarity and difference. It is well understood that constitutional 1 In this paper, I do not take a position on the most appropriate metaphor to describe how foreign sources affect domestic constitutional systems. On this debate, see Vlad Perju, Constitutional Transplants, Borrowing, and Migrations, in Oxford Handbook of Comparative Constitutional Law 1304 (Michel Rosenfeld & András Sajó eds., 2012). In using the term constitutional ideas, I adopt Gunter Frankenberg s definition: Ideas can be described as knots of significations that framers, courts, and commentators have spun. These knots come under the guise of constitutional archetypes, patterns, structures, basic outlines, plans of action, or conceptions : Gunter Frankenberg, Comparing Constitutions: Ideas, Ideals, and Ideology Toward a Layered Narrative, 4 Int l J. Const. L.. 439, 440 (2006). 2 See, e.g., Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L.J. 819 (1999); Mark Tushnet, The Possibilities of Comparative Constitutional Law, 108 Yale L.J (1999); Ruti Teitel, Comparative Constitutional Law in a Global Age, 117 Harv. L. Rev (2004); Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109 (2005). 3 The U.S. Const., for example, was written against the backdrop of 18th-century English law and legal thought : Roper v. Simmons, 543 U.S. 551, 626 (2005) (Scalia J.). 4 I use the term actors broadly, referring to persons and institutions engaged in the field of constitutional law, such as academics, advocates, committees, drafters, interest groups, lawyers and politicians. 5 On the centrality of these inquiries to the study of comparative constitutional law, see Sujit Choudhry, Migration as a New Metaphor in Comparative Constitutional Law, in The Migration of Constitutional Ideas 1, 21 (Sujit Choudhry ed., 2007); Gunter Frankenberg, Constitutional Transfer: The IKEA Theory Revisited, 8 Int l J. Const. L. 563, 579 (2010). 6 Sujit Choudhry, The Lochner Era and Comparative Constitutionalism, 2 Int l J. Const. L. 1, (2004). See also Kim Lane Scheppele, Aspirational and Aversive Constitutionalism: The Case for Studying Cross- Constitutional Influence Through Negative Models, 1 Int l J. Const. L. 296 (2003).

3 872 I CON 11 (2013), ideas are context sensitive and therefore susceptible to unintentional alteration or transformation when transplanted from one jurisdiction to another. 7 Reengineering refers to the deliberate, as opposed to the accidental or inevitable, modification of foreign ideas upon their incorporation into a domestic system. 8 It involves the addition, amendment, or replacement of (at least) one cardinal element of a constitutional idea, such as its principal function or objective. Neither a wholly positive nor wholly negative form of comparative engagement, reengineering entails adoption of some elements of an idea and rejection of others. Section 2 of the article discusses the notion of reengineering in detail. To illustrate the process and implications of constitutional reengineering, I evaluate Australia s approach to rights reform in the late 1990s and early 2000s, a period during which domestic actors reengineer the Canadian idea of dialogue. In both countries, the concept broadly refers to interactions between public institutions on rights issues. Dialogue, in its Canadian form, addresses the subject of judicial finality whether courts have the final word on rights issues. Debates about dialogue are debates about whether the Canadian Charter is distinguishable from the paradigm of judicial supremacy as exemplified by the United States Bill of Rights (US BoR). Section 3 of the paper analyzes the Canadian idea of dialogue. In Australia, where debate was under way as to whether it should adopt a rights instrument and, if so, what form should it take, actors appropriate the idea and language of dialogue, becoming both the object of reform as well as the means of achieving that object. During its journey across the Pacific Ocean, the idea of dialogue is reengineered in two respects. First, it expands beyond courts and legislatures to encompass institutional interactions between all three arms of government and between government and community. From this shift emerges a different attitude to the primary source of rights violations. Second, dialogue s rationale in constitutional theory reorients so as to differentiate Australia s form of rights protection from the paradigm of legislative, not judicial, supremacy. I discuss Australian actors efforts to reengineer the idea of dialogue in Section 4. I argue in Section 5 that this process of constitutional reengineering supplies a point of caution in relation to existing comparative accounts of rights developments in Australia, Canada, New Zealand, and the United Kingdom. The rights instruments in these four countries, commonly referred to in terms of the new Commonwealth model of constitutionalism, 9 parliamentary bills of rights, 10 or weak-form 7 For a discussion of the importance of context to the migration of ideas in the field of private law, see Alan Watson, Legal Transplants (1974); Pierre Legrand, The Impossibility of Legal Transplants, 4 Maastricht J. Eur. & Comp. L. 111 (1997); Alan Watson, Legal Transplants and European Private Law, 4.4 Elec. J. Comp. L. (Dec. 2000), available at 8 Other scholars occasionally refer to the phenomenon but rarely single it out for separate or detailed treatment: see, e.g., Wiktor Osiatynski, Paradoxes of Constitutional Borrowing, 1 Int l J. Const. L. 244, (2003); Frankenberg, supra note 5, at Stephen Gardbaum, The New Commonwealth Model of Constitutionalism, 49 Am. J. Comp. L. 707 (2001); Stephen Gardbaum, Reassessing the New Commonwealth Model of Constitutionalism, 8 Int l J. Const. L. 167 (2010); Stephen Gardbaum, The New Commonwealth Model of Constitutionalism (2013). 10 Janet L. Hiebert, New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?, 82 Tex. L. Rev (2004); Janet L. Hiebert, Parliamentary Bills of Rights: An Alternative Model?, 69 Mod. L. Rev. 7 (2006).

4 Constitutional reengineering 873 judicial review, 11 are said to occupy a middle ground or intermediate position between the traditional paradigms of judicial supremacy and legislative supremacy because they empower courts to review legislation for compatibility with rights while permitting legislatures to disregard or override judicial determinations on rights without resort to constitutional amendment or indirect means. Comparative analysis of the idea of dialogue highlights two matters. First, it demonstrates the difficulty of situating the Australian and Canadian instruments between the two traditional paradigms because their shared, distinguishing feature (dialogue) is, in fact, a point of divergence, not convergence, between them. Second, existing accounts tend to view developments through the prism of judicial review and legislative override. 12 Yet the idea of dialogue, as reengineered in Australia, draws attention to the importance of processes (the procedures by which law making power is exercised) as much as outputs (which institution gets the final word). 2. Constitutional reengineering and comparative analysis 2.1. Definition Foreign ideas influence the process of constitutional construction in a variety of ways. It is helpful to begin by demarcating what I do not consider constitutional reengineering. Actors may seek to emulate a constitutional idea either by copying it verbatim or by copying all of its essential features. The latter refers to instances where drafters copy a provision but make stylistic or peripheral modifications such as rewording or reformatting. Even when actors intend to emulate a foreign idea, this does not necessarily indicate that emulation will in fact result. Actors may misunderstand an idea s attachment to or dependence on other elements in the foreign constitutional system. Or domestic lawyers and judges might misconstrue the effect of reformulation, adopting a substantially different meaning when reformulation of a foreign provision was intended merely to clarify. When actors consult foreign sources during the process of constitutional construction, they are often working under a double burden. Not only might they have incomplete or distorted knowledge about the foreign idea and its host environment but they are also making predications about the range of circumstances the foreign idea will encounter if adopted domestically. 13 Given the significance of context, culture, path dependency, and human idiosyncrasy, it is arguably unavoidable that ideas will undergo some modification as they migrate 11 Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights- and Democracy-Based Worries, 38 Wake Forest L. Rev. 813 (2003); Mark Tushnet, Alternative Forms of Judicial Review, 101 Mich. L. Rev (2003); Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008). 12 Although Stephen Gardbaum does not discuss in detail the importance of processes, he does criticize the tendency to focus exclusively on judicial review: Gardbaum, The New Commonwealth Model of Constitutionalism, supra note 9, at Frankenberg, supra note 5, at 575.

5 874 I CON 11 (2013), to new jurisdictions. 14 For present purposes, the relevant point is that such modifications are epiphenomenal: actors are seeking to reproduce without significant modification a foreign constitutional idea in their domestic system. Reengineering, by contrast, refers to situations where actors intend to appropriate a foreign constitutional idea and supplement, change, or replace one of its cardinal features. While no bright line can be drawn between an idea s cardinal and non-cardinal features, I understand them to include its principal function and objective. For reasons explained below, my definition of reengineering is confined to significant modifications in order to isolate those instances of migration where actors are substantively developing, not merely adjusting, constitutional concepts. As with all other forms of comparative engagement, while there must be an identifiable source, it is not necessary to identify a single antecedent multiple jurisdictions may express broadly the same idea or to track the idea back to the first time it was expressed in constitutional law. 15 Fundamental to my definition of reengineering is intent. Reengineering is not the result of actors limited knowledge and foresight or a function of the complex web of factors that affect the operation of constitutional law. It is, instead, the conscious decision to use a constitutional idea from a foreign system and to modify it in an important respect to meet the goals of or constraints imposed by the domestic legal and political environment. Modification is not the accidental or inevitable consequence of migration but a purposive retooling of the machinery of constitutional government. No restrictions are, however, imposed on the character or quality of modification. Reengineering is not confined to attempts to enhance or improve constitutional ideas, even if it were possible to identify what constitutes these qualities. Pernicious motives may underlie decisions to reengineer. Focusing on the fact of intent raises a number of methodological issues. Actors do not always reveal the reasons for the positions they hold or may publicly set forth secondary or ulterior reasons to obtain competitive advantages in the course of constitutional debate and negotiation. Yet, as others scholars demonstrate, it is possible to draw nuanced conclusions about the ways in which foreign sources enter and influence the development of domestic systems if careful attention is paid to primary sources. 16 Constitutional construction involves the participation of numerous persons and institutions often with dissonant aspirations, assumptions, and levels of legal expertise. 17 The presence of multiple contested meanings in respect of an idea is not, however, fatal to the study of constitutional reengineering. Indeed, contestation is often a condition of its facilitation. If some actors want to incorporate a foreign idea while 14 Osiatynski, supra note 8, at As Gunter Frankenberg states, constitutional history teaches us that points of origin are hard to pin down : Frankenberg, supra note 5, at Kim Lane Scheppele s distinction between negative and aversive forms of comparative engagement is one such example: Scheppele, supra note In the context of statutory interpretation, the difficulties with the concept of legislative intent are well known but not insurmountable: see, e.g., Richard Ekins, The Nature of Legislative Intent (2012).

6 Constitutional reengineering 875 others campaign for its rejection, a compromise might result whereby the idea is incorporated in a reengineered form. As with constitutional emulation, reengineering may not produce the result actors desire. Indeed, if emulation frequently produces unintended results, modifying constitutional elements in novel or distinctive ways arguably increases the likelihood of unforeseen consequences. No set of drafters is able to control completely the future outcomes of their constitutional choices. Too much uncertainty, too many contingencies complicate the exercise of constitutional construction. The unintentional need not, however, detract from analysis of the intentional. Reengineering is a distinct and central component of comparative engagement because it represents an attempt by actors to direct constitutional outcomes in a particular direction even if they (and we) must acknowledge that the ultimate direction is not entirely within their control. Any constitutional idea that is capable of migration is capable of reengineering. Let me provide two simplified and stylized examples. First, the idea of a written constitution. The decision to draft a document setting out the fundamental rules and structure of government is typically also associated with an intention to constitute a new (or reaffirm an existing) independent polity, thus acting as an integral element and reflection of that polity s identity and values to symbolize[] a new consciousness of nationhood and of national beginnings. 18 The US Constitution is the paradigmatic case of a document with these dual purposes its text not only functions to establish the framework principles of government but also is inextricably connected to American identity, to the creation of We the People of the United States.... Australia and Canada borrowed the idea of a written constitution from the US in the nineteenth century, but reengineered it, stripping away the nation-building and independence-declaring elements. 19 This difference is unmistakeable. The American document, as both a text and symbol, is commonly described as the scripture of the country s civic religion. 20 By contrast, Ivor Jennings, for example, described the Canadian Constitution the document enacted in 1867 as a strictly business-like document. It contains no metaphysics, no political philosophy, and no party politics. 21 Australia and Canada s Constitutions were not intended to bring about or symbolize their departure from the British Empire both are enactments of the British Parliament or to pertain in any 18 Morton J. Horwitz, Constitutional Transplants, 10 Theoretical Inquiries in L. 535, 540 (2009). 19 The preambles indicate as much. In the Canadian Constitution, it states that the provinces have expressed their desire to be federally united into one dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom [and that] such a union would conduce to the welfare of the provinces and promote the interests of the British Empire. The preamble to the Australian Constitution is less emphatic, but the intention is nevertheless manifest. It declares that the states have agreed to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland. Some aspects of the Australian and Canadian Constitutions are, of course, indicative of their specific identities, for example, language in Canada: British North America Act, 1867 (UK), See, e.g., Sanford Levinson, Constitutional Faith (2011). 21 W. Ivor Jennings, Constitutional Interpretation: The Experience of Canada, 51 Harv. L. Rev. 1, 1 (1937).

7 876 I CON 11 (2013), deep way to the fundamental values of these nations. They were designed to establish and regulate a federal system of government and little more. 22 Over the course of the twentieth century, a number of authoritarian regimes adopted written constitutions with guarantees of rights and freedoms even though the governments in these countries routinely violated them with impunity. 23 The Soviet Constitution of 1936, for example, included an extensive catalogue of rights and freedoms, 24 yet the gap between codified constitutional law and government practice was acute: the Constitution was adopted during the height of Stalin s reign of terror. 25 These sham constitutions 26 are another instance of reengineering. Actors take the idea of a written constitution and employ it not for the purpose of regulating and constraining government but to maintain a veneer of compliance with the rule of law and accepted constitutional norms. Federalism is another constitutional idea that is capable of being reengineered as it migrates across jurisdictions. The concept of split-level government has a long history in which it has been continually modified to address a widening array of issues. 27 A federal structure may be adopted, for example, to unite a collection of colonies or sovereign states to advance economic and security interests, to facilitate local representation and government administration in a geographically expansive state, to protect individual liberty by preventing the accumulation of power in a single, central government, and to protect the interests and promote the peaceful coexistence of different ethnic, racial, and religious groups by granting each some degree of selfgovernment. These purposes are not mutually exclusive actors may seek a federal system to realize more than one objective but they are nonetheless distinct. Many countries have taken another country s federal constitutional structure, such as those of Switzerland and the US, and reengineered it to perform the functions and objectives required by the polity s domestic circumstances Rationale Reengineering stands at the intersection of the endogenous and exogenous crosscurrents that propel the process of constitutional construction. Actors glance outwards 22 Australia and Canada s Constitutions played only a minor role in achieving legal and political independence from the UK: Peter C. Oliver, The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand (2005). 23 David S. Law, Constitutions, in The Oxford Handbook of Empirical Legal Research 376, (Peter Cane & Herbert M. Kritzer eds., 2010). 24 Const. of the Union of Soviet Socialist Republics (1936), Arts See generally Horwitz, supra note 18, at Christopher Osakwe, Soviet Human Rights Law under the USSR Constitution of 1977: Theories, Realities and Trends, 56 Tul. L. Rev. 249, 250 (1981). 26 David S. Law & Mila Versteeg, Sham Constitutions, 101 Cal. L. Rev. 863 (2013). Cf. Frankenberg, supra note 1, at On the range of federal systems, see Ronald L. Watts, Comparing Federal Systems (3d ed., 2008). On the range of theories of federalism, see The Ashgate Research Companion to Federalism (Ann Ward & Lee Ward eds., 2009).

8 Constitutional reengineering 877 to source ideas that have proven effective at generating sundry beneficial effects drawing from the above-mentioned examples, the legitimacy that can attach to the adoption of a written constitution or the stability that can derive from a federal system of government. They then turn inwards to shape these ideas to respond to domestic aspirations and constraints. Reengineering is one product of this admixture of introspection and extrospection from which we discern insights into why a constitution functions the way it does. 28 As Gary Jacobsohn observes: 29 Much of the aspirational content of a nation s specific constitutional identity consists of goals and principles that are shared by other nations.... Such norms need to be reconciled with the particularistic commitments of local traditions and practices; the contours of constitutional identity will to a large extent reflect how these disharmonies get resolved. Reengineering is a means by which competing constitutional priorities are both revealed and reconciled. Study of the phenomenon thus helps us draw an accurate and complete picture of constitutional systems, including their priorities and distinctive features. Each of the three queries I mentioned at the start of the paper is informed by reengineering. First, to address how constitutional ideas migrate requires a measure of detail on the treatment of foreign sources in constitutional design. Identifying the phenomenon of reengineering not only adds to the compendium of modes of comparative engagement but also underscores the intrinsic malleability of constitutional ideas. As my chosen metaphor suggests, actors retool the machinery of government in an effort to improve, manipulate, or redeploy it, indicating that the study of migration is multifaceted and thus implicates more than the dichotomies of positive/negative engagement and borrowing/non-borrowing. Second, this ductility emphasizes the relevance of pragmatic considerations to understanding why constitutional ideas migrate. While all constitutions are not necessarily forged in the fires of adversity, the drafting process, especially in democratic systems, is typically characterized by contestation between competing factions vying for the realization of their respective constitutional visions. 30 As both a means of engaging in and a product of this contestation, reengineering exemplifies the centrality of politics and expediency to the migratory flow of constitutional ideas. Reengineering allows actors to exploit the benefits attaching to a constitutional idea while maintaining, or purporting to maintain, some control over its effect on the domestic system. As mentioned above, a reengineered constitutional idea can be the artifact of compromise, a concession brokered between incorporation and non-incorporation where an idea is included on condition of certain modifications being made In the process of reengineering we can observe the nucleus of comparative law analysis, the reconciliation of new knowledge to settled knowledge, which involves a dialectical exchange between the self and the other : Gunter Frankenberg, Critical Comparisons: Re-thinking Comparative Law, 26 Harv. Int l L.J. 411, (1985). 29 Gary Jeffrey Jacobsohn, Constitutional Identity (2010). 30 For a discussion of the decision costs that constitutional drafters face, many of which relate to the issue of contestation, see Rosalind Dixon & Tom Ginsburg, Deciding Not To Decide: Deferral in Constitutional Design, 9 Int l J. Const. L. 636, (2011). 31 See also Jacobsohn, supra note 29, at

9 878 I CON 11 (2013), Third, reengineering speaks to the effects of idea migration, informing and complicating assessments of convergence and divergence among constitutional systems. 32 It underscores that conceptual similarity does not necessarily translate into corporeal similarity. Reengineering provides a layer of context when context matters most: at moments of legal and political transformation. 33 Careful comparison of an idea in its foreign and domestic guises reintroduces a level of nuance that is liable to be removed from accounts of migration. It helps prevents, at the most fundamental level, registration of false positives. To avoid the trap, as Vlad Perju states, where similar-sounding concepts [do not] share an identical meaning 34 or, in the words of Morton Horwitz, to reconcile the gap between law in books and law in action. 35 Constitutional reengineering is, after all, a principal means of modifying an idea while preserving the same label. The study of reengineering functions as an interpretive foil, 36 prompting greater awareness of the existence of constitutional difference and the nature of that difference. Part of its attraction is that, in contrast to unintended modifications to constitutional ideas, reengineering is capable of identification and therefore analysis. Examination of this phenomenon thus allows us to construct more incisive comparative models of constitutional systems. 3. The Canadian Charter and the birth of dialogue Although the Canadian Charter was enacted in 1982, the view that the instrument creates a novel form of interaction, or dialogue, between courts and legislatures only began to achieve prominence after an article by Peter Hogg and Allison Bushell published in Their article provoked a strongly contested and seminal debate in Canadian constitutional law for it makes more than a bare descriptive claim about the Charter s institutional structure. 38 They and subsequently others argue that dialogue 32 On convergence and divergence, see Rosalind Dixon & Eric A. Posner, The Limits of Constitutional Convergence, 11 Chi. J. Int l L. 399 (2011); Teitel, supra note Teitel, supra note 2, at Perju, supra note 1, at Horwitz, supra note 18, Choudhry, supra note 2, at The authors, in their initial article, do, however, acknowledge earlier references to dialogue to describe interactions between courts and legislatures in American constitutional theory: Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn t Such a Bad Thing After All), 35 Osgoode Hall L.J. 75, 79 n. 12 (1997). 38 For a partial list, see Rosalind Dixon, The Supreme Court of Canada, Charter Dialogue, and Deference, 47 Osgoode Hall L.J. 235, 236 n. 2 (2009). Other scholarship includes Christopher P. Manfredi & James B. Kelly, Six Degrees of Dialogue: A Response to Hogg and Bushell, 37 Osgoode Hall L.J. 513 (1999); Jamie Cameron, Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v. Mills, 38 Alberta L. Rev (2001); Christopher P. Manfredi, The Life of a Metaphor: Dialogue in the Supreme Court, , 23 Sup. Ct. L. Rev. (2d) 105 (2004); Andrew Petter, Taking Charter Dialogue Much Too Seriously, 45 Osgoode Hall L.J. 147 (2007); Grant Huscroft, Rationalizing Judicial Power: The Mischief of Dialogue Theory, in James B. Kelly & Christopher P. Manfredi eds., Contested Constitutionalism: Reflections on the Charter of Rights and Freedoms 50 (2008); Mark Tushnet, Dialogic Judicial Review, 61 Ark. L. Rev. 205 (2008).

10 Constitutional reengineering 879 ameliorates the concern of judicial finality 39 what Alexander Bickel called in the American context the problem of an unelected judiciary thwart[ing] the will of representatives of the actual people of the here and now. 40 Dialogue is an exercise in differentiation, positing that the Canadian Charter is distinguishable from the paradigm of judicial supremacy exemplified by the US BoR and the counter-majoritarian difficulty that engulfs analysis of it The drive to differentiate The Canadian Charter bears a number of structural similarities to its southern counterpart, explicitly replicating the fundamental features of American rights-based judicial review the Charter is constitutionally entrenched and directs courts to enforce its terms by declaring legislation found to be incompatible with rights to be of no force or effect as well as to provide appropriate and just remedies to the victims of rights violations. 42 The similarities are not coincidental. Although the US served as both model and anti-model during the drafting process, 43 Canada s starting point on the road towards a Charter was, in terms of structure, one of emulation. Pierre Trudeau, the leading figure behind the enactment of the Charter as Justice Minister and later Prime Minister, set out to replicate the American approach to rights protection. In 1969, the Trudeau government set out its position on a proposed Charter (to be contained in the Canadian Constitution), stating that it would limit the power of governments and would override ordinary governmental action even duly enacted statutes which invaded those rights. 44 [M]aintenance of the principles of the Constitution would be enforced[d] by the courts. 45 During the decade and a half of debate and negotiation leading up to its enactment, Canada s provinces, some of which were opposed to the federal government s plans for a Charter, secured two compromises that allow legislatures to create exceptions to rights. First, the limitations clause, contained in section 1, permits legislatures to impose limits on rights as long as they are reasonable, prescribed by law, and 39 Hogg and Bushell conclude that the critique of the Charter based on democratic legitimacy cannot be sustained : Hogg & Bushell, supra note 37, at 105. In the face of subsequent critique, Peter Hogg later resiles from this position, stating they should not have claimed that we had answered the countermajoritarian object to judicial review that went too far but we were surely right to say that our finding that the decisions of the Court were not usually the last word should at least transform the debate about the legitimacy of judicial review : Peter W. Hogg, Discovering Dialogue, 23 Sup. Ct. L. Rev. (2d) 3, 4 (2004). 40 Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 17 (1962). Theories of dialogue are less suited to addressing the many other concerns related to rights-based judicial review, for example, that it debilitates and distorts political discourse and encourages legislative abdication of difficult issues. 41 The centrality of differentiation is manifest from the opening section of Hogg and Bushell s article: Hogg & Bushell, supra note 37, Constitution Act, 1982, 24, 52. The power of judicial review is entrenched against amendment by ordinary legislative enactment: Constitution Act, 1982, pt. V. 43 Choudhry, supra note Pierre E. Trudeau, The Constitution and the People of Canada: An Approach to the Objectives of Confederation, the Rights of People and the Institutions of Government 18 (1969). 45 Id. at 38.

11 880 I CON 11 (2013), demonstrably justified in a free and democratic society. Second, the notwithstanding or override clause, contained in section 33, permits legislatures to declare, by express legislation, that a law will operate notwithstanding certain rights. 46 By the 1990s, concerns about the democratic legitimacy of rights-based judicial review had begun to frequent discussions of Canadian constitutional law. Justice Iacobucci observed in 1998 that it seems that hardly a day goes by without some comment or criticism to the effect that under the Charter courts are wrongfully usurping the role of the legislatures. 47 Section 33 had proven to be a contestable, uncertain ameliorating factor primarily due to its desuetude. 48 Canadian legislatures have rarely invoked the notwithstanding clause the federal legislature, for example, has never used it leading some commentators to go so far as to suggest that a constitutional convention barring its invocation is under development. 49 Hogg and Bushell state that the notwithstanding clause is relatively unimportant, because of the development of a political climate of resistance to its use. 50 For the same reason, Jeremy Waldron counts the Charter as equivalent to the US BoR in his argument against strong-form judicial review, stating that his thesis in respect of Canada is affected only slightly by the formal availability of the override Dialogue as differentiation Following the failure of section 33 to placate concerns about rights-based judicial review, two theories of dialogue dialogue as legislative responsive and dialogue as judicial deference develop that purport to distinguish the Canadian Charter from the US BoR by addressing the issue of judicial finality. Dialogue as legislative response, which is initially proposed by Hogg and Bushell and subsequently taken up with most enthusiasm by Kent Roach, 52 posits that the Canadian Charter does not frustrate democratic decision-making because legislatures are able to reverse, modify and avoid judicial decisions using the ordinary law making process The provision is not applicable to all Charter rights and invocations expire after a period of five years, but are renewable. 47 Vriend v. Alberta, [1998] 1 S.C.R. 493, Cf. Jeffrey Goldsworthy, Judicial Review, Legislative Override, and Democracy, 38 Wake Forest L. Rev. 451 (2003). 49 As early as 1991, Andrew Heard describes the reluctance to invoke 33 as an embryonic rule[] that [may] go on to acquire enough support to be transformed into a higher class of convention : Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics 147 (1991). See also Mark Tushnet, Policy Distortion and Democratic Debilitation: Comparative Illumination of the Countermajoritarian Difficulty, 94 Mich. L. Rev. 245, 296 (1995). 50 Hogg & Bushell, supra note 37, at Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346, 1357 (2006). 52 See, e.g., Kent Roach, The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (2001); Kent Roach, Dialogic Judicial Review and its Critics, 23 Sup. Ct. L. Rev. (2d) 49 (2004); Kent Roach, Dialogue or Defiance: Legislative Reversals of Supreme Court Decisions in Canada and the United States, 4 Int l J. Const. L. 347 (2008). 53 Hogg & Bushell, supra note 37, at 79.

12 Constitutional reengineering 881 Hogg and Bushell point to four features of the Charter that facilitate this form of dialogue: the notwithstanding clause, the limitations clause, the qualified nature of many Charter rights, and the discretion given to legislatures by the right to equality ( 15). Later scholars add to this list, pointing to the power to refer abstract questions to courts and the judicial practice of issuing suspended declarations, which provides legislatures with a grace period to enact new legislation before a declaration of invalidity comes into effect. 54 Dialogue as legislative response appears to offer a more robust answer to the problem of judicial finality than section 33 per se because a stronger case can be made that it exists in practice. Hogg and Bushell conduct a statistical survey finding that legislatures responded in eighty percent of cases where courts invalidated legislation under the Charter. 55 Supporters of dialogue can claim that legislatures are not only able to but do in fact respond to invalidations by enacting new statutes that achieve, albeit in adjusted form, their desired policy objectives. Consequently, judicial review does not foreclose democratic decision-making for in most instances a legislative reply is forthcoming. Subsequent scholars point to a number of deficiencies with relying on dialogue as legislative response to differentiate the Charter from the US BoR. 56 Of the four features Hogg and Bushell identify, only one is appreciably distinct: the notwithstanding clause. With respect to the limitations clause, while the US BoR does not have a similar provision, it is well established that American courts understand rights to be limited, even those expressed in absolute terms. 57 With respect to the qualified nature of rights, the US BoR also contains rights qualified in similar terms. Indeed, among the examples Hogg and Bushell cite are the Canadian rights against unreasonable search and seizure and cruel and unusual punishment. 58 Both qualifiers are verbatim copies of the qualifiers found in the US BoR. 59 With respect to the right to equality in the Charter, the equal protection and due process provisions of the US BoR are also broadly worded and thus capable of multiple forms of implementation. 60 This leaves 54 Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited Or Much Ado About Metaphors, 45 Osgoode Hall L.J. 2, (2007); Roach, Dialogue or Defiance, supra note 52, at 360. The Supreme Court of Canada has acknowledged the role of remedies, such as suspended declarations, in the facilitation of dialogue: Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, They equivocate as to whether every form of legislative response is properly understood as dialogue: Hogg & Bushell, supra note 37, at Christopher Manfredi and James Kelly posit that one of the reasons Hogg and Bushell s original article employing the term dialogue proved to be attractive to the Supreme Court of Canada in Vriend v. Alberta was the term s empirical grounding: Manfredi & Kelly, supra note 38, at See, e.g., Mark Tushnet, Judicial Activism or Restraint in a Section 33 World, 64 U. Toronto L.J. 89 (2002); Dixon, supra note 38, at Tushnet, supra note 56, at 92 (2002); Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391, (2008). 58 Hogg & Bushell, supra note 37, at U.S. Const. amends. IV, VIII. 60 U.S. Const. amend. XIV. Note, however, that the scope for legislative response is arguably more restricted in the US due to the Supreme Court s interpretation of 5 of the Fourteenth Amendment: Robert C. Post & Reva B. Siegel, Protecting the Constitution from the People: Juricentric Restrictions on Section Five Power, 78 Ind. L.J. 1 (2003). On the differences between Canada and the US in respect of equality, see Choudhry, supra note 6.

13 882 I CON 11 (2013), the notwithstanding clause, which Hogg and Bushell admit is incapable of differentiating the two instruments by itself. More fundamentally, dialogue as legislative response is not necessarily indicative of a distinctive form of institutional interaction on rights. 61 American legislatures commonly respond to judicial rulings on rights. 62 Legislative response is perfectly compatible with the paradigm of judicial supremacy if the legislature s response is acquiescence 63 or, in the event of non-acquiescence, the judiciary asserts the absolute primacy of its interpretation and refuses to take into account the legislature s view. Dialogue as legislative response thus serves in many respects to underscore the similarities, not differences, between the Canadian Charter and the US BoR. 64 Dialogue as judicial deference, a later theory articulated in greatest detail by Rosalind Dixon, 65 focuses on second look cases. This refers to situations where a legislature enacts a statute that a court invalidates for infringing a Charter right (the first look case), the legislature responds by enacting a second statute that does not wholly accord with the findings in the first look case, and the law is then challenged before the courts (the second look case). Dialogue occurs in the second look case if the court affords some degree of deference to the legislature s interpretation of the right as expressed in the response legislation. 66 Deference is not total courts continue to require legislatures to make a good faith attempt to consider and respond to the court s views expressed in the first look case but it captures a structure whereby each branch engages with and acknowledges the work of the other. 67 However, doubts also surround the ability of dialogue as judicial deference to serve as a meaningful point of distinction between the Canadian Charter and the US BoR. As this theory focuses on the action of courts not legislatures, as is the case with dialogue as legislative response it is reliant on judicial support. While Dixon gathers data suggesting that Canadian courts in fact practice deference in second look cases, 68 its long-term viability is significantly dependent on supportive judicial pronouncements because the text of the Charter 69 provides no direct support for such a principle. The Supreme Court of Canada has, however, expressly denounced deference in second look cases. In Sauvé v. Canada (Chief Electoral Officer), Chief Justice McLachlin, writing for the majority, said: Tushnet, supra note 38, at ; Dixon, supra note 38, Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993). 63 Cf. Hogg & Bushell, supra note 37, at Dixon, supra note 38, at Id.; Rosalind Dixon, Weak-form Judicial Review and American Exceptionalism, 32 Oxford J. Leg. Stud. 487 (2012). 66 Cf. James B. Kelly & Matthew A. Hennigar, The Canadian Charter of Rights and the Minister of Justice: Weakform Review Within a Constitutional Charter of Rights, 10 Int l J. Const. L. 35, 42 (2012). 67 Courts do not submit to the authority of legislatures but give weight to the opinion of legislatures, which Alison Young calls deference as respect in contrast to deference as submission: Deference, Dialogue and the Search for Legitimacy, 30 Oxford J. Leg. Stud. 815, (2010). 68 See especially Dixon, Weak-form Judicial Review, supra note Rosalind Dixon grounds her theory in 1 of the Charter, but the provision offers no direct, explicit support for such an approach to interpretation: Dixon, supra note 38, at [2002] 3 S.C.R. 519, 17.

14 Constitutional reengineering 883 the fact that the challenged denial of the right to vote followed judicial rejection of an even more comprehensive denial, does not mean that the Court should defer to Parliament as part of a dialogue. Parliament must ensure that whatever law it passes, at whatever stage of the process, conforms to the Constitution. The healthy and important promotion of a dialogue between the legislature and the courts should not be debased to a rule of if at first you don t succeed, try, try again. Both theories of dialogue make, therefore, contestable claims about whether the Charter establishes an approach to rights protection different from the paradigm of judicial supremacy exemplified by the US BoR. 4. Dialogue migrates to Australia For Australian actors, the timing of overseas developments was fortuitous. The Canadian conception of dialogue emerged at the same time as a new round of inquiries into rights protection began at the sub-national and subsequently national level. Rights advocates saw the potential for dialogue to influence reform efforts; hence it quickly rose to prominence as an idea and descriptor. Yet the dual Canadian theories of dialogue did not traverse the Pacific because Australians eschewed a Charter-style, constitutionally entrenched rights instrument enforced by courts empowered to invalidate legislation. Dialogue is reengineered to form the basis for differentiating another approach to rights protection, one sourced in the UK s Human Rights Act 1998 (UK HRA), from the preexisting paradigm of legislative supremacy The reception of foreign constitutional ideas in Australia The British approach comes to dominate Australian debates about rights reform for it appears to offer a path to discernible hence worthwhile yet modest hence realizable change. Compared to the Canadian approach, the UK HRA is an ordinary statute and thus easier to enact, modify, and repeal, especially against the background of a Constitution that is extraordinarily difficult to amend. 71 In light of reluctance about and resistance to rights reform among some segments of the Australian community, 72 the British approach presented a more acceptable form of reform because it preserves a greater degree of legislative power by denying courts the power to invalidate primary legislation. While New Zealand s Bill of Rights Act 1990 (NZ BoRA) also has these characteristics, the UK HRA contains more clearly defined roles for each arm of government, especially the judiciary. Both Acts direct courts to adopt interpretations of rights that are compatible with rights, but only the UK HRA specifies that a court may issue a declaration of incompatibility when a rights-compatible interpretation is not possible. 71 An amendment to the Australian Constitution must be passed by both houses of federal parliament and, at a referendum, receive the approval of a majority of voters and a majority of voters in a majority of states: Australian Constitution, 128. Since 1901, only eight amendments have been made. 72 David Erdos, The Rudd Government s Rejection of an Australian Bill of Rights: a Stunted Case of Aversive Constitutionalism?, 65 Parl. Affairs 359 (2012).

15 884 I CON 11 (2013), Declarations do not affect the validity, operation, or enforcement of a law; they are designed to alert the executive and legislature to a court s finding of incompatibility, prompting debate within and between the non-judicial arms as to whether the law should be amended. The UK also goes further than NZ to enjoin the non-judicial arms in the protection of rights. The UK HRA imposes an affirmative obligation on individual ministers to make a statement of compatibility in respect of every bill placed before parliament. 73 (NZ s reporting requirement is weaker as it only requires the Attorney-General to issue a statement when he or she determines that a bill appears to be inconsistent with rights. 74 ) In connection with but not under the terms of the UK HRA, a parliamentary Joint Committee on Human Rights was created with a broad remit over human rights issues, including scrutiny of bills before parliament. 75 (NZ has no equivalent.) Hogg and Bushell s 1997 article, and dialogue s subsequent rise to prominence, came too late to affect the debates on and drafting of rights instruments in the other common law countries of NZ, South Africa (enacted in 1996) and the UK. 76 The most one finds is a brief mention of the idea in connection with the UK HRA, where Home Secretary Jack Straw states that Parliament and the judiciary must engage in a serious dialogue about the operation and development of the rights in the Bill.... [T]his dialogue is the only way in which we can ensure the legislation is a living development that assists our citizens. 77 Even in Canada it is a post facto ascription. By contrast, due to its late arrival to the cause of rights, the legal instruments that are proposed and adopted in Australia are designed from the ground up with dialogue in mind. The combination of dialogue to describe the objective of reform as the creation of institutional interaction on rights and the UK HRA as a means of realizing this objective has a perceptible impact on the direction of debate in Australia. Compare the parliamentary committees of inquiry into rights protection in Queensland, which reported in 1998, and New South Wales, which reported in The Queensland report makes no mention of dialogue or the UK HRA. 78 Three years later, the New South Wales committee, even though it recommends against the introduction of a rights instrument, cannot ignore either development. The committee s report observes that [t]he British model was praised by those participants in this inquiry who saw it 73 Human Rights Act, 1998, c. 42 (Eng.), Bill of Rights Act, 1990 (N.Z.), For a discussion of the Committee s history and purpose, see Janet L. Hiebert, Parliament and the Human Rights Act: Can the JCHR Help Facilitate a Culture of Rights?, 4 Int l J. Const. L. 1 (2006). 76 Although dialogue did not figure in the development of rights instruments in these countries, Canada was nevertheless an important source of influence: see, e.g., Paul Rishworth, The Inevitability of Judicial Review Under Interpretive Bills of Rights: Canada s Legacy to New Zealand and Commonwealth Constitutionalism?, 23 Sup. Ct. L. Rev. (2d) 233 (2004). 77 Parl. Deb., H.C. (U.K.) at vol. 314 col (24 June 1998). 78 The only reference to dialogue is to a report on regional dialogue on human rights issues: Legislative Assembly of Queensland, Legal, Constitutional and Administrative Review Committee, The Preservation and Enhancement of Individuals Rights and Freedoms in Queensland: Should Queensland Adopt a Bill of Rights? 57 (Report No. 12, November 1998).