From Dialogue to Disagreement in Comparative Rights Constitutionalism

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).

This 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.

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.