CCCS Seminar: Legislative Rights Review: The Perils of Constitutional Borrowing

Tuesday, 27 August, 2013 - 13:00 to 14:00

Bills of rights in New Zealand, the United Kingdom and Australia have adapted and incorporated a bold idea that first originated in the 1960 Canadian Bill of Rights: the idea of conceiving a bill of rights as an instrument to alter the norms of legislative decision-making, by creating a new statutory requirement that legislative bills be accompanied by a statement outlining if they are not compatible with protected rights. The expectation was that this reporting obligation would force bureaucrats and cabinet to confront how government's legislative agenda implicates rights, the desire to avoid parliamentary criticism and judicial censure would encourage the use of more compliant ways to achieve the legislative objective in question, and parliament's increased attention to the rights-dimension of legislative bills would encourage parliamentarians to hold government to account for decisions that implicate rights. This idealistic expectation for bureaucratic, executive and parliamentary review of bills from a rights perspective can be referred to as legislative rights review.

On its face, the marriage of a bill of rights with an expectation for legislative rights review envisages a potentially far reaching way of guarding against rights infringements by conceiving of rights protection in proactive rather than reactive terms, and by subjecting all government bills to a form of rights-based review, and not just the relatively small sub-section of legislation that is litigated and subject to judicial review. This idea that parliament should play a more central role protecting rights is particularly attractive for those who are concerned about whether rights are given due consideration in legislative decision-making processes and yet are sceptical about the virtue of court-centric bills of rights.

However, proponents must guard against overly optimistic assumptions (such as those the author held in earlier works) that the concept of legislative rights review will substantially transform political behaviour and practices. In borrowing and adapting this idea from one parliamentary system to the other, reformers and scholars have not paid sufficient attention to the significance of the political and institution setting in which this idea is situated, and the challenges that a Westminster-based parliamentary system presents for this idealistic vision of rights protection.

This talk is based on a soon to be completed manuscript, Parliamentary Bills of Rights. The Limits of Constitutional Engineering in New Zealand and the United Kingdom (co-written with James Kelly).


Janet Hiebert is Professor in the Department of Political Studies, at Queen's University.  She has been teaching in the Department of Political Studies since 1991, having received a B.A. (Hons) from UBC in 1985, and an M.A. (1986) and a Ph.D (1991) from the University of Toronto. She is the author of two books about the Canadian Charter of Rights and Freedoms, Charter Conflicts: What is Parliament's Role? (McGill-Queen's University Press, 2002), and Limiting Rights: The Dilemma of Judicial Review (McGill-Queen's University Press, 1996), along with numerous papers and chapters on the politics of rights and on campaign finance laws in Canada. She is in the final stages of a manuscript with James Kelly, Parliamentary Bills of Rights. The Limits of Constitutional Engineering in New Zealand and the United Kingdom, which examines how the New Zealand Bill of Rights Act and the Human Rights Act impact on legislative decision-making.


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Room 920, Level 9, MLS


185 Pelham Street Carlton VIC 3053


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