Romance, Realism, and the Legitimacy of Implied Rights

Proponents of implied rights insist that rights do not depend on the existence of a bill of rights. A bill of rights, they argue, simply codifies rights that are otherwise immanent in the constitution. Thus, rights may turn out to be constitutionally protected whether or not they were included in a bill of rights such as the Canadian Charter of Rights and Freedoms – more radically, even if the decision was made not to have a bill of rights at all, as in Australia.It is illegitimate for the judiciary to conclude that either the Canadian or the Australian Constitution implies rights, however – no matter how desirable a particular implication may appear in a given context – because both the decision to adopt a particular bill of rights and the decision to adopt no bill of rights at all are political settlements that courts must respect. It is no part of the judiciary’s role to change the constitution it is charged with upholding.The author discusses Canada's experience with implied rights litigation both prior to and since adoption of the Canadian Charter of Rights and Freedoms, along with recent attempts to invoke the rule of law principle to invalidate legislation.This paper is part of a special issue of the University of Queensland Law Journal marking the 20th anniversary of the Implied Rights decisions of the High Court of Australia.