Overview

The bills of rights adopted in the Commonwealth countries of Canada, New Zealand, the United Kingdom and, at the subnational level, Australia in recent decades, have prompted scholars and institutional actors involved in the process of constitutional design and reform to rethink how to evaluate and compare the different approaches to human rights protection. They have challenged a number of assumptions in the field, for example, that courts must have the power to invalidate laws that are found to violate rights (ie courts can now be given non-binding powers), that courts must have the 'final word' on rights issues (ie legislatures can now be given the power to override judicial decisions) and that bills of rights are enforced exclusively by courts (ie legislators can now be given new responsibilities to ensure that the laws they enact are compatible with rights). \nThis book addresses three questions arising from these developments. How do these new bills of rights differ from the traditional approaches to rights protection? Why, if at all, should we consider the Commonwealth's approach over the traditional approaches? What compromises must be struck in the course of adopting a bill of rights of this variety? In answering these questions, the book sets out a new framework for comparison that focuses on the types of inter-institutional disagreement facilitated by and found in the different approaches to rights protection. It also identifies a previously unrecognised element of the Commonwealth's approach - the normative trade-offs with other constitutional principles and values - that is pivotal to understanding its operation. Finally, it seeks to contribute to future debates about rights reform in Australia and elsewhere by setting out a number of lessons that emerge from the answers to these three questions. \n**Dr Scott Stephenson, From Dialogue to Disagreement in Comparative Rights Constitutionalism, was joint winner of the inaugural Holt Prize 2015.

Full Product Details

Author:   Scott Stephenson
Publisher:   Federation Press
Imprint:   Federation Press
Weight:   0.630kg
ISBN:  

9781760020675

ISBN 10:   1760020672
Pages:   272
Publication Date:   27 September 2016
Audience:   Professional and scholarly ,  College/higher education ,  Professional & Vocational ,  Tertiary & Higher Education
Format:   Hardback
Publisher's Status:   Active
Availability:   Available To Order  
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Table of Contents

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

Reviews

While Dr Stephenson's first treatise, From Dialogue to Disagreement in Comparative Rights Constitutionalism is, in many respects, a continuation of this trend in public law scholarship, the project distinguishes itself admirably from existing veins within this literature. It achieves success with this commendable effort by adopting quite a novel framework through which to view judicial review and constitutionalism. This becomes a framework Stephenson then applies in later chapters to four major Commonwealth jurisdictions-the UK, Canada, Australia, and New Zealand. ... Stephenson's work makes an important contribution to the existing literature. We commend his excellent comparativism - especially with respect to the nuanced exposition of inter-institutional disagreements, which are common across the four jurisdictions. From Dialogue to Disagreement will undoubtedly become familiar to law librarians everywhere, and can be recommended to socio-legal scholars, those focused purely on constitutional doctrine, and the well-read general reader. Those seismic shifts may not cease anytime soon, but at least we have new tools to examine whatever rises from the deepest constitutional strata. Read full review... - Daniel Davison-Vecchione and Charlie Eastaugh, Public Law UK, April 2017 In 2015 Dr Scott Stephenson was one of the two inaugural winners of the prestigious Holt Prize, a biannual publishing award which recognises excellence in unpublished legal works of an academic or practical nature, named after the late Christopher Holt, a co-founder of the Federation Press. This book is the product of that award. From Dialogue to Disagreement considers the constitutional approaches to rights protection in a number of Commonwealth jurisdictions. It is of particular and timely relevance to Queensland, where the government recently announced its intention to introduce a Human Rights Act based on the Victorian Charter of Human Rights and Responsibilities. Dr Stephenson describes the human rights instruments which have developed in Australia, Canada, New Zealand and the United Kingdom as examples of multi-stage rights review . These frameworks depart from the previous dichotomy between judicial supremacy (through judicial review) and legislative supremacy (through parliamentary sovereignty) to involve a number of different institutions in sometimes novel ways. The innovative premise of this book is that these approaches - though commonly known as dialogue models of human rights protection - are best analysed by reference to the disagreement, rather than dialogue, that they foster between institutional actors. This striking yet persuasive approach is justified by close investigation of the difficult, controversial and complex nature of human rights matters and issues that have arisen in each jurisdiction. Dr Stephenson focuses on three questions arising from the adoption of multi -stage rights review in the four Commonwealth countries. First, he considers how these models differ from pre-existing systems grounded in an orthodox dichotomy between judicial and legislative supremacy. Second, he asks why, if at all, one should prefer the Commonwealth approach to rights constitutionalism over traditional paradigms. Third, he queries what compromises must be struck in the course of adopting human rights charters and the implementation of the enacted instruments. As the Honourable Chief Justice of Australia says in his Foreword, this book is both a thoughtful and penetrating work which casts a fresh perspective on modern approaches to rights protection in Commonwealth jurisdictions. As such, it is a valuable and timely work and a worthy recipient of one of Australia's most prestigious publishing awards. - Queensland Law Reporter - 16 December 2016 - [2016]

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

Author Information

Dr Scott Stephenson is a Lecturer at Melbourne Law School, The University of Melbourne. His research focuses on topics of Australian and comparative constitutional law and theory, including the migration of constitutional ideas, models of rights protection, federalism, and international law's effects on domestic constitutional doctrines. After receiving his BA and LLB(Hons) with the University Medal in Law from the Australian National University, he worked at the High Court of Australia, first as the Court's Legal Research Officer and then as Associate (Law Clerk) to Justice Virginia Bell AC. He then obtained his LLM and JSD from Yale University. While at Yale, he held the position of Tutor-in-Law for two years, was awarded the Fox International Fellowship to spend a year undertaking research at the University of Cambridge, and visited the University of Copenhagen's Centre of Excellence for International Courts (iCourts). He has published in a number of Australian, Irish, UK and international journals, including Dublin University Law Journal, International Journal of Constitutional Law, Melbourne University Law Review, and Public Law.

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