Constitutional vs Statutory Bills of Rights with Weak-Form Judicial Review

Weak-form judicial review allows legislatures to override judicial decisions on rights through the ordinary lawmaking process. It can be incorporated into a bill of rights that is constitutionally entrenched, as with the Canadian Charter of Rights and Freedoms, or an unentrenched statute, as with the NZ Bill of Rights Act and UK Human Rights Act. This paper considers the merits of the two methods of establishing weak-form judicial review. Benefits of constitutional entrenchment include establishing the bill of rights as superior law, encouraging robust judicial enforcement of rights, and establishing legislative override as extraordinary, signalling that it should only occur after careful legislative deliberation. Benefits of an unentrenched statute include multiple forms of legislative override, allowing legislatures to tailor their response to each individual case, and progressive development of the remedial system, allowing recalibration of the bill of rights in light of experience. The paper applies these considerations to the ongoing debate about whether Australia should adopt a bill of rights and, if so, what form it should take.