Legal and political protections of fundamental rights: strengths and weaknesses : a comparative study

The protection of fundamental rights is an important concern of modern legal systems. Fundamental rights are representative of basic, core interests which are viewed as being so important that they should not be infringed except in limited, clearly defined circumstances. This thesis investigates the ways in which four jurisdictions - Australia, Canada, the European Union (EU) and the United Kingdom (UK) - have sought to ensure that primary legislation does not unduly restrict fundamental rights and it assesses the strengths and weaknesses of the various approaches. -- The protection of fundamental rights against legislative encroachment is secured by legal protections and political protections. The former involve a judicial consideration of the rights-compatibility of legislation, while the latter require that the executive and legislature devote attention to the rights-implications of legislative proposals prior to their enactment into law. Legal protections take four forms and each of the four jurisdictions is broadly representative of one of these forms. -- The inclusion of fundamental rights as part of the general principles of Union Law and the inclusion of the Charter of Fundamental Rights of the European Union within the constitutional Treaties have resulted in the EU offering strong-form judicial review, whereby rights are given a status which allows courts to find rights-incompatible legislation invalid. In Canada, weak-form judicial review (constitutional) derives from the constitutional Canadian Charter of Rights and Freedoms. Courts can find rightsincompatible legislation invalid, but the legislature is able to override the judicial decision and re-enact the legislation, notwithstanding the rights-incompatibility. The UK has a bill of rights which is a legislative instrument and offers weak-form judicial review (legislative) as the legal protection of rights. A strong interpretative obligation is imposed on the courts to interpret legislation in a rights-compatible manner, so far as it is possible to do so. While the court can declare that legislation is unable to be interpreted in a manner compatible with rights, the legislation will remain valid despite the incompatibility. Finally, in the absence of a specific rights instrument and judicial review as to compatibility with fundamental rights, the legal protection of rights in Australia relies primarily on a rebuttable presumption that legislation is intended to be rights-compatible. This presumption influences the interpretation of statutes. -- This thesis will explain the strengths and weaknesses of legal protections. It will also demonstrate that legal protections can be viewed as situated along a spectrum of strengths and weaknesses. Adoption of a form of legal protection which emphasises the strengths of legal protections carries the cost of similarly emphasising the potential weaknesses. Conversely, the forms of legal protection which most mitigate the weaknesses similarly fail to realise its potential strengths. -- There are two main forms of political protection that are considered in this thesis - executive certification of Bills and committee-based legislative scrutiny of Bills. These are protections which seek to prevent (or discourage) the passage of rights-incompatible legislation by ensuring that matters relating to rights are considered by the political branches of government. Both of these forms of political protection are present, in various forms and with different emphasis, in each of the jurisdictions. The thesis will examine the strengths and weaknesses of these political protections and the features that must be present in order to maximise the potential strengths (and minimise the potential weaknesses). -- This is not a thesis that suggests that any particular form of legal protection is 'better' or 'worse', or which promotes a particular form of judicial review over another. Instead, this thesis acknowledges that there are fundamental political, structural and philosophical differences which may influence, or even dictate, the form that legal protections take in any particular jurisdiction. In acknowledging this, the thesis will show that regardless of the form of legal protection present in a legal system, political protections ought to play a substantial role. Where legal protections are of ostensibly the 'strong' kind, the weaknesses of the legal mechanism are similarly emphasised and thus robust political protections are necessary to fulfil a role relating to expanding the breadth of rights-discourse, improving the quality of legislation and minimising the potential for political issues to be shifted from the political to the legal arena. While political protections alone cannot achieve the strengths of legal protections, where legal protections are 'weak', 'unclear' or otherwise lacking in strength, political protections push rights into the forefront of political debate and discourage (or at least hold law-makers answerable for legislative encroachment which may otherwise have slipped through the cracks.

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