Julie debeljak who is sovereign now

Most significantly, however, is the fact that this is all done despite clear parliamentary intention to the contrary. Therefore it cannot be recognized by any court anywhere. Journals Talk. The latest on the most extensive range of legal journals in the Australian market, along with articles, news, submission requirements and more.

Legal - Australia Thomson Reuters. The Momcilovic Court hands back power over human rights that Parliament intended it to have.

Thus, in an attempt to preserve parliamentary sovereignty, the Charter limits judicial powers to those of interpretation and non-enforceable declaration only, rather than conferring powers of judicial law-making or invalidation.

In addition, the interaction between the arms of government is characterised as a dialogue about rights and their limitations, rather than a judicial monologue under which judges are the final arbiters of rights, with the executive and parliament shaping their policy and laws to fit judicial interpretations of rights. Unfortunately, the solution may not secure its purpose. Secondly, the power of judicial interpretation is more potent than judicial declaration.

Thirdly, these factors combined are likely to result in allegations of improper judicial activism and calls for judicial deference which will, in turn, influence where the judiciary draws the line between interpreting on the one hand, and law-making and declarations on the other. Where, why and how this line is draw will, in turn, impact on parliamentary sovereignty and rights protection as an educative dialogue.

Let us consider each issue in turn. First, the line between judicial interpretation and judicial law-making is far from clear. At what point does a judicially-assessed rights-compatible interpretation in truth become a judicial re-writing of legislation? British experience is highly instructive, given that the Charter is modelled on the s 3 interpretation and s 4 declaration powers of the HRA. Let us explore the judicial task in more detail. First, the judiciary must decide whether the legislation limits the right in question.

This is demonstrated by the following summary of judicial approaches to the interpretive obligation. In R v A No 2 R v A , 26 Lord Steyn stated that s 3 empowers judges to read down express legislative provisions or read in words so as to achieve compatibility. The salient point is that, no matter how many judicial expositions are offered, there is no clear line between interpretation and law-making and this will cause controversy.

Now, scrutiny of the judiciary and debate about whether judges merely interpreted or actually legislated in particular cases, per se, is not a problem. However, because the difference between interpretation and law-making is imprecise, there will be no clear answer.

At what point does expressing legislative intent in different language become judicial law-making? At what point does reading down, or reading in, parliamentary language by the judiciary become judicial law-making? It will be impossible to determine such debates in an objective fashion. This makes allegations of improper judicial activism and law-making easy to make, but very difficult to defend or resolve. This has the real potential to undermine the independence and standing of the judiciary, the administration of justice, and the rights project.

The power of judicial interpretation is more potent than judicial declaration, because the judiciary achieves particular legislative outcomes with interpretation which it cannot achieve through declaration. Indeed, if the choice is between producing rights-respecting outcomes for litigants in particular cases through interpretation, or enforcing incompatible law in the case at hand coupled with a declaration, a preference for interpretation is understandable.

Two matters flow from this. First, once the power differential is understood, there may be calls for judicial deference section 5. Secondly, it may result in the over-use of interpretation and the under-use of declaration section 6. Let us look at these issues in turn. The solution to the power differential is to find the correct balance between interpretation and declaration.

The British judiciary has leaned toward judicial deference as the tool to achieve this balance. However, resort to judicial deference must be challenged on a number of fronts.

The first challenge is posed by the various bases upon which deference is being extended. For example, democratic accountability has justified judicial deference in decisions ranging from the allocation of resources, 49 to the eviction of tenants by registered social landlords, 50 to the quality of public housing, 51 to immigration control, 52 to planning decisions, 53 to the discriminatory provision of social security benefits, 54 to the regulation of mounted foxhunting with dogs, 55 to the denial of the right to vote to prisoners, 56 and to the treatment of suspected terrorists.

There main weakness with deference based on democratic sentiment is that it creates problematic forms of inter-institutional dialogue. In my opinion, dialogue is ideally about exposing decision makers in each arm of government to the diverse perspectives on rights of those with different institutional roles and strengths, different forms of reasoning and different motivations.

Each arm of government must respectfully listen to and critically analyse the viewpoints of the others, then review its own pre-conceived ideas against those other views, and be open to the persuasion of others — thereby achieving an educative interaction. In the words of Roach, the institutional dialogue:. Deference based on democratic accountability does not create a dialogue.

Rather, judges are meant to reflect the democratic mainstream and be influence by the majority and the majoritarian institutions.

When creating policy and translating that into legislation, the representative arms can place limits on the protected rights to further non-protected democratic values under s 7. If the judiciary finds a limit to be unjustifiable and alters the limit through judicial interpretation, the parliament can simply re-enact the limit in clear legislative terms. Title Sort Sort by citations Sort by year Sort by title. Melbourne University Law Review 26 2 , , Melbourne University Law Review 32 2 , , International Journal of Legal Information 28 2 , , Australian Journal of Human Rights 9 1 , , Articles 1—20 Show more.

Help Privacy Terms. Rights protection without judicial supremacy: a review of the Canadian and British models of Bills of Rights. Balancing rights in a democracy: the problems with limitations and overrides of rights under the Victorian Charter of Human Rights and Responsibilities Act Who is sovereign now?

Proportionality, rights-consistent interpretation and declarations under the Victorian charter of human rights and responsibilities: The Momcilovic litigation and beyond J Debeljak Monash University Law Review 40 2 , ,