 Ladies and gentlemen, welcome to this cleanery session. Here we examine what happens when the rubber hits the road in terms of human rights regimes and their impact on both lawmakers and official decision makers, together with a critique of the forms of contemporary scholarship relating to, in particular, the Commonwealth model of human rights. Our first speaker is Professor Janet Hebert, who is Professor in the Department of Political Studies at Queen's University. Her research interests are described as the politics of rights, Canada, the United Kingdom, Australia and New Zealand and Canadian federalism. Her most recent publication last year was Parliamentary Bill of Rights, The Experience of New Zealand and the United Kingdom. Our second speaker will be Claudia Geringa, who holds the Chair in Public Law at Victoria University of Wellington and is Director of the New Zealand Centre for Public Law. She teaches and researches in the area of the New Zealand Bill of Rights Act, Constitutional and Administrative Law, the domestic reception of international law and the laws of Parliament. I'll invite Professor Hebert to speak first. Well, I want to begin by thanking the organizers for inviting me. It's a lovely event to be part of. So my paper focuses on what has been referred to in varying ways as the Commonwealth model of the Bill of Rights or a weak form model of the Bill of Rights or what James Kelly and I in the book just mentioned characterized as Parliamentary Bills of Rights. Those adapted in Canada, New Zealand, the United Kingdom and the Australian jurisdictions of ACT and Victoria. Now, after a somewhat different perspective, I'm not focusing on what courts are doing. I'm focusing on what bureaucracy, government and parliaments are doing. Now, as my research progresses, I become increasingly skeptical about whether or not this constitutes a distinct model. If there is a unifying influence, it's that shared institutional and political factors that complicate the normative aspirations that some associate with this kind of Bill of Rights, which is characterized as offering a democratically superior way of protecting rights than associated with a more conventional model. So two things are unique to these parliamentary bills of rights. First, their attempts to bridge rival constitutional principles, parliamentary supremacy and judicial review, which they do so by conceiving of judicial remedial power in a far more constrained sense than under a more conventional Bill of Rights. Only Canada allows courts to actually invalidate or nullify legislation. Second, each has adopted a statutory reporting obligation to inform parliament when government is introducing legislation that is inconsistent with protected rights. So while most scholarly attention on these bills of rights focus on what are the courts doing and the rulings they make, I'm going to offer a very different take, a very different perspective, and that is how are these bills of rights influencing legislative decision making. So bills at a general level, bills of rights are said to have varied effects on legislative behavior. In the United States, for example, constitutional considerations are not considered a priority for Congress, where decision making is dominated by political and policy interests. In sharp contrast, Alec Stonesweet argues that European legislative decision makers anticipate judicial censor, that they debate policy preferences in the vocabulary of constitutional judges, and that they exercise self-restraint as a way of protecting the stability of legislation. As he argues, governing with judges means governing like judges. So this paper asks the following questions. In Canada, New Zealand, the United Kingdom, and Australia, are legislative processes and legislative outcomes being driven by attempts to ensure that they're consistent with judicial norms? And if not, why not? Research on the paper draws from the earlier collaboration with James Kelly that resulted in the book that was mentioned, as well as research I've done in Canada and in Australia. The research comprised open-ended interviews with more than 100 public officials that spanned about eight, nine years, this book took a long time, about the practices and assumptions for evaluating legislative initiatives and advising on whether they're consistent with rights, also assessments of parliamentary treatment of bills. So before I get to my questions, I want to identify key institutional and political factors that these jurisdictions share. First, or what I refer to as the Westminster factors. The principle of parliamentary supremacy, executive dominance of the legislative process, the convention of responsible government, where the executive must retain the confidence of parliament to continue, and the centrality of strong, cohesive parties that organize how parliament functions. Second, each jurisdiction has a statutory reporting obligation to alert parliament if legislation is inconsistent with protected rights. These vary. Some require reports for all bills, some only for government bills, some for inconsistent legislation, some for all legislation. But the intent underlying all of these was to encourage a more critical focus on rights when conceiving and pursuing the government's legislative agenda, and also to encourage parliament to hold government to account for decisions that implicate rights. Third, judicial remedial powers are more constrained than in more conventional models. Now the scope of judicial power varies significantly, and the impact is almost certainly influenced by the extent to which a polity has a strong commitment to comply with judicial rulings. So if you were to situate the combination of the strength of judicial remedial power with the expectation of compliance on a continuum, Canada and New Zealand would be at opposite ends, with the UK closer to Canada and the two Australian jurisdictions closer to New Zealand. So Canada is at the strong end, New Zealand at the weekend. Now, although I discuss all the jurisdictions of the paper for purposes of time, I'm going to sorry, Australians, I'm going to focus on Canada, UK and New Zealand. So if the threat of judicial censor operates as an incentive for legislative integration of judicial norms into legislative decision-making in the way StoneSuite characterizes European behavior, it would be reasonable to expect that this would most likely occur in Canada and the UK, where the prospects and implications of judicial review are the most significant. Conversely, by the same logic, it's reasonable to expect that New Zealand, the ACT and Victoria would have weaker incentives to engage in robust compatibility assessments because the implications of judicial review and even the prospects of judicial review are far weaker. However, as the paper argues, the incentives for integrating judicial norms into legislative decision-making is far more complicated than to assume they're motivated only or even primarily by apprehension of judicial review. In Canada and the UK, government lawyers engage in case-driven, risk-based assessments of the degree to which legislative initiatives are vulnerable to judicial censor. Yet in neither country is it clear that government necessarily privileges these judicial norms over other concerns when pursuing their legislative agendas. Yet in both countries, governments are extremely reluctant to admit to parliament that they're aware when legislative bills are inconsistent with judicial norms. In Canada, there has never been a report of inconsistency, of charter inconsistency, despite a statutory obligation. The standard adopted for determining whether this reporting obligation is engaged is extremely weak. It allows for determination of charter consistency so the minister doesn't have to report to parliament even when almost certain the legislation sends a really good chance of being declared unconstitutional. The frequency in which the Supreme Court has found legislation unconstitutional reinforces the sense of government unwillingness to knowingly pass legislation and unwillingness to report to parliament that it's doing it. Between 1984 and 2015, the Supreme Court invalidated 51 federal acts for actions. Now in the UK, there have been two reports of inconsistency and two more upon amendments. However, the tendency to have positive affirmations of consistency is regularly contested by the highly respected Joint Committee of Human Rights and also by the House of Lords. And interviews with governments in both countries confirm that advice about consistency either adopts relatively low standards and or is framed in a way that allows government to essentially cherry pick the advice they wish. There's this way of looking at it and there's that way of looking at it so that governments know when legislation is vulnerable, they just choose not to interpret the statutory reporting obligation in a way that requires them to tell parliament that the legislation is inconsistent. Now, unlike Canada and UK in New Zealand and the ACT in Victoria, this pre-legislative vetting is not based on risk-based assessments of the likelihood you're going to lose, but instead on reasons and principles derived from relevant jurisprudence. And New Zealand has the most transparent approach to all of this. Since 2003, the Ministry of Justice has posted its legal advice about compatibility and also identifies the author of that advice. And both factors operate as extremely strong incentives for legal advisors to avoid succumbing to departmental governmental pressure to offer positive advice to avoid the statutory reporting obligation. More than 60 reports of inconsistency have been made by the Attorney General New Zealand, almost half involved in government bills. Yet despite the frequency of these reports of inconsistency, parliament has had little to fear that a report will actually harm its chances of pursuing its legislation. So what explains why judicial norms are not having a more significant influence on government? Well, my argument here is not that these bills of rights are not having any influence on legislative decisions. The systematic identification of compatibility, consistency, almost certainly has an impact on how policy objectives are formulated as legislative bills. Particularly when advice does not lead to delays or significant distortions to the government's preferred legislative agenda. However, there's little evidence that these compatibility concerns regularly constrain government if strongly committed to a specific legislative goal despite its possible contravention of judicial norms. So the most persuasive explanation for this is that these bills of rights have not fundamentally altered the key institutional political dynamics that shape how these Westminster-based political systems function. Governments continue to dominate the legislative process when they have a majority or in New Zealand when they're part of a stable coalition. Cohesive party voting reinforced by the political convention that government might fall if it loses the confidence of parliament continues to discourage members from the government party from rebelling and or are not forceful enough to undermine their party leader's ability to pass their preferred legislative agenda. Moreover, leaders of the opposition parties do not generally see the utility in arguing questions of compatibility or compliance in their perpetual role, which is to show themselves as the alternative to government. Now there is an important exception, the House of Lords in the UK, which frequently raises concerns about rights and passes rights-friendly amendments. Yet the House of Lords influence is often diminished by the government's ability in the Commons to call upon disciplined party voting to basically defeat the amendments the Lords have made. Thus to date, governments in all jurisdictions have had little to fear that these parliament will really hold them to account for decisions that implicate rights. For government leaders, the most immediate concern is not what our court's going to say, but how do they protect their legislative agenda from parliamentary delay, substantial amendments or defeat. Amendments can weaken the compromises achieved beyond and within caucus, can also wreak havoc in an already crowded parliamentary agenda. They're also, amendments are also portrayed in the media as a side of weakness that the government has caved into the opposition. When you consider this against the backdrop of the electoral cycle, the risk, the concern of judicial censor is considered way too far in the future for government to worry about immediately when their more immediate concern is passing the legislation. Keep in mind they may not even be office by the time the courts rule, and if they are, they can always engage in court bashing or engage in creative responses to remedy the perceived efficiency what we sometimes refer to Canada as notwithstanding by stealth. So let me wrap up with some concluding thoughts. Although these parliamentary bills of rights do not emulate the kind of risk averse behavior that Alex Stone Sweet characterizes in Europe, this doesn't mean that the scope of judicial remedial power is irrelevant. The power of courts in Canada to nullify inconsistent legislation and a political culture of compliance with judicial rulings means that even if government is willing to roll the dice in the initial phase of this judicial parliamentary tango, it will generally back down later and introduce remedial measures to try and comply with the court. And a similar effect occurs in the UK as a result of the strong expectation of compliance because of the treaty basis upon which the Human Rights Act is based. Exceptions of course, prisoners voting. Thus even if Canadian UK courts engage in short-term risky behavior, they appear to accept the inevitability of having to comply with judicial rulings. But for the most part this is reactive, not proactive behavior, and therefore it's not consistent sort of the normative claims sometimes made on behalf of this model. I've got one final thing I want to suggest, and this one for me was sort of the well-hover light bulb moments. So when I began this project, I anticipated that pre-legislative vetting for rights compatibility would be taken most seriously where the consequences of judicial sense are the highest, Canada and the UK. And conversely, it would have a less substantial effect elsewhere where judicial review represents a lower threat to government. But I've had reason to question this assumption as the research progressed. Apprehension of judicial sense certainly alters the dynamics of pre-legislative vetting but not in the way I anticipated. Although Canadian and UK governments are often willing to be constrained by judicial norms, at least at the outset, they're not prepared to admit this to parliament. But this presents a really serious problem for public servants. On the one hand, government lawyers consider themselves duty bound to respect statutory requirements and are reluctant to compromise the professional judgment. Yet on the other hand they function in an environment where they're expected to facilitate rather than frustrate the government's legislative agenda and they have strong incentives to maintain good working relationships with ministers. Well in Canada and UK government lawyers incur constant pressure to frame advice in a way that avoids government ministers having to report with the legislation inconsistent. And in both countries this reporting obligation has been effectively transformed from a compatibility or consistency focus to a risk assessment which allows governments to calculate the political risks. Not the risk of whether they're going to lose to the courts, but the political risks associating with proceeding with this rights offending legislation and to anticipate the kinds of arguments they're going to make to try and justify the legislation. So to the extent that a preoccupation with justifying rights infringing legislation becomes embedded in bureaucratic culture and political practices, this detracts from a much more critical focus on whether legislative objectives should be rethought and reformulated to avoid violating rights. In New Zealand and Australia where judicial censor is not as pressing a threat to governments, this tension is significantly reduced. When I asked an Australian legal advisor, why does the incentive for taking this whole vetting exercise seriously given that there's not really a serious off and threat that the courts will invalidate legislation, they looked at me, perplexed. The answer, it's the law. Interviews confirmed a far more rule bound approach in Australia than certainly exists in Canada when they will in fact suggest that the reporting obligation is not engaged even if there is as high as a 90 to 95 percent chance the legislation will be struck down by the court. Thus, in my final word, although it seemed to me at first counterintuitive, bluntly stated, apprehension of judicial censor in Canada and the UK undermines rather than enhances the normative ideals associated with the statutory reporting obligation, which again are to discourage governments from knowingly pursuing legislation that's inconsistent with rights unless prepared to defend their decisions and also to increase the visibility of this judgment so Parliament will hold government to account. Thank you. I'd like to add my thanks to those of others for the invitation to be here in this fairytale city and also again for the miraculously good weather. Like Janet, my focus today is on the family of human rights instruments that comprise the Canadian Charter of Rights and Freedoms, the New Zealand Bill of Rights Act, the UK's Human Rights Act and the two Australian subnational human rights charters. And these instruments constitute a family in my view not only because of a certain kind of intermediate constitutionalism that they may or may not promote, more about that soon, but for other reasons including shared aspects of the constitutional heritage and context in which they operate. The existence in all of these jurisdictions for example of a common law legal system legal tradition and Westminster derived parliamentary systems and of course my co-panelist has made some of the most sustained and significant contributions to our understanding of that latter feature the shared parliamentary context and specifically to our understanding of how these instruments impact on the design and enactment of legislative proposals. And just to be clear at the outset I agree with Janet that this is an extremely interesting and important dimension to how these instruments operate that we ought to study closely but I'm going to resist her invitation which she's made to me on more than one occasion to label these instruments parliamentary bills of rights for reasons that I hope will become obvious from my paper. In the written paper I've adopted Stephen Gardbaum's terminology of the Commonwealth model and I propose to use that term today though perhaps that's an issue that we could come back to in questions in discussion. If I can start with a brief read on perspective I'm a New Zealander and a New Zealand based legal academic and my primary research interest is the New Zealander Bill of Rights Act. I'm particularly interested in how it operates in practice and the extent to which that either confirms or defies the various expectations that have been placed on it over the last quarter century or so. But as well as being an academic I've also spent periods on the inside of government legal practice both in New Zealand and also for a brief period in the state of Victoria in Australia in each case in both an advisory and a litigation capacity. And that cross-jurisdictional exposure has fostered a particular interest in what happens when these instruments sharing as they do a number of common design features are transplanted into their different national and regional settings. How do we account for the substantial differences in lived experience that exist under the various iterations of the Commonwealth model and what lessons might we draw from that account? And in this paper what I wanted to do was to think a bit harder about what might be gained from approaching these instruments from a comparative perspective. How might we approach such study and what insights might we hope to derive from that sort of enterprise? But in order to do that my starting point as with any research exercise was to examine the comparative work that it had already been done in relation to these instruments. And when I did that I found myself struck by how dominated the field is by one particular tradition of comparative scholarship. This is the scholarship that I've called in the paper the intermediate constitutionalism tradition. It's so dominating in fact that it felt almost unrespectable to be engaging in a different kind of comparative analysis of these instruments. So I found myself sort of facing a roadblock stuck at my starting line and compelled to offer some kind of critique of the intermediate constitutionalism tradition before I could move beyond it to sketch the out loans of different kind of comparative agenda. And that's my explanation or apology for the focus and structure of the paper which like some others that I've heard this morning isn't quite the paper that I thought I was going to write. The papers in two halves the first half comprises a critique of the intermediate constitutionalism tradition and the second half tries to put some meat on the bones of what a broader research agenda might look like. And I propose to approach today's presentation in much the same way although I won't be talking to the written paper. So the scholarship with which I'm concerned is most closely identified with the work of Mark Tashnet and Stephen Gardbaum although there are numerous other contributors. Many of you will be familiar with this tradition but briefly the basic preoccupation of these scholars is with the significance of the Commonwealth model for the potential resolution of the constitutionalism democracy dilemma. So these scholars identify an age old debate between two polar models of constitutionalism, parliamentary supremacy and judicial supremacy. They rehearse the criticisms associated with those polar positions and they suggest that the point of distinctiveness of the Commonwealth model is its potential to carve out a hybrid form of constitutionalism that sits at an intermediate point between these axes. And it's to assess and weather and how that potential is realized that these writers address themselves. And I want to start by acknowledging that this is important scholarship that in its time has made a significant contribution to constitutional theory. It engages with what is undoubtedly a central dilemma of Western constitutionalism and it recasts that debate in new terms and I personally have benefited enormously from reading it over the years. But this kind of scholarship has been allowed to dominate the comparative agenda in a way that I think is unhelpful. So in this paper I want to problematize it and to identify some of its shortcomings. And in the written paper I've developed two critiques, a subject matter critique and a methodological critique. But for want of time today I'm going to focus exclusively on the former although I'm certainly happy to discuss the letter during questions. The subject matter critique arises from the central preoccupation of this tradition of scholarship with what is distinctive about the Commonwealth model as identified specifically from the perspective of the constitutionalism democracy dilemma. So the idea here is that the Commonwealth model leaves the final word on the content of legislation with legislatures that promotes opportunities prior to that final word being exercised for inter-institutional engagement over the human rights compatibility of legislation. And the almost exclusive focus of this scholarship is on the small handful of features of the model that promote these forms of inter-institutional engagement. So the features associated with pre-enactment political rights review that the sort of features that Janet's discussed today, judicial powers of rights consistent interpretation, judicial powers to declare laws inconsistent with human rights standards and the powers and or obligations placed on the executive in the legislature to respond to or override or ignore such judicial determinations. And again don't get me wrong these are important and interesting features of the Commonwealth model that are worthy of careful assessment. But it's surely something of an irony of this tradition of scholarship that even as it claims to rewrite the terms of the constitutionalism democracy debate it remains fixated on that debate and adopts it as the sole or dominant lens through which to view these instruments. And I've suggested on the paper that this focus on inter-institutional engagement over the content of legislation unhelpfully narrows the focus of the inquiry into respects. First and most importantly I think it allides almost entirely the work of the executive branch of government or at least it reduces that branch to a generator of legislative proposals. In other words the administrative law impact of these instruments disappears entirely from view. And this is at odds with the fact that these instruments were in many respects conceived of as administrative law tools. They speak directly to the exercise of public power in its many forms. The assumption being that the shield of primary legislation to protect non-conforming acts of public authorities will be available only really. Administrative law implications are not addressed presumably because they're not identified as a point of distinctiveness as between supreme law and non-supreme law bills of rights. Well in the paper I've tried to press a little harder on that question of distinctiveness. It seems to me that there are a range of questions that could be posed as to whether the approach to administrative law protection generated by the model or perhaps by the subset of statutory bills of rights is indeed distinctive. Perhaps part of the genius of the Commonwealth model tradition is its attempt to harness the insight that in Westminster systems constitutional law and administrative law are intimately connected. But whether or not I've succeeded in the paper in making out this claim for additional traits of distinctiveness the more important point is that an overriding focus on distinctiveness only makes sense if we're approaching these instruments from an external perspective and specifically from the vantage point of judicial supremacy. In my view this mode of scholarship is really best understood as a product of the American Academy of the late 1990s and early 2000s. This was an academy fixated on the inquest court's reassertion of judicial supremacy and intent on generating alternative visions of American constitutionalism and I've suggested in the paper somewhat provocatively that this mode of scholarship speaks more as a critique of American constitutionalism rather than as a fully realized analysis of the instruments themselves. What's certain in any event is that how these instruments operate or fail to operate in the administrative law arena is a key aspect of their comparative success or failure and a comparative account that fails to address this is radically incomplete. The second respect in which a preoccupation with inter-institutional engagement over the content of legislation unhelpfully narrows the focus of the inquiry is that it tends to direct the inquiry towards explicit textual mechanisms for engagement and away from broader contextual factors. So for example with the notable exception of the United Kingdom's supranational commitments Stephen Gardbaum concedes little to the explanatory power of broader contextual considerations. Many of his reform recommendations seem to be proposed on the optimistic assumption that minor tinkering with text or in some cases simply instructing institutional actors to behave differently will be effective in engineering change. Now this issue of attention to context is one that I expand on rather more fully in the written paper but for now I want to move to the second part of the paper in which I attempt to put some meat on the bones and to illustrate what a broader agenda for Commonwealth model comparativism might look like and in order to do that I focused the second half of the paper around one apparent dissimilarity in the lived experience of having a charter of rights in two of the Commonwealth model jurisdictions New Zealand and Victoria. This point of divergence has nothing or at least nothing obvious to do with the constitutionalism democracy dilemma but it is I think a detail of some considerable interest. It concerns the comparative salience of these two instruments the New Zealand Bill of Rights Act and the Victorian Charter in the areas of criminal versus civil justice. So let me illustrate this pointless in figures. A search of one of the most comprehensive New Zealand databases case law databases reveals that around 77% of the decisions from New Zealand courts and tribunals that cited the New Zealand Bill of Rights during a sample period of five years immediately following its enactment concerned issues arising in the course of criminal investigation or trial. Now for many of you this may not seem surprising. What may perhaps seem more surprising is that in Victoria the exact inverse is true around 77% of decisions from Victorian courts or tribunals and tribunals that cited the Victorian Charter during a five-year period immediately following its its operation concerned issues that arose outside the context of criminal investigation and trial. Well that's a striking point of contrast and is borne out by qualitative analysis. To this day New Zealand commentators remark over and over again at the apparent lack of salience the New Zealand Bill of Rights has had outside the criminal procedure context and the inverse observation is repeatedly made of its Victorian comparator. Well this interesting point of contrast suffices in itself to illustrate the incomplete nature of the research agenda generated by the intermediate constitutionalism tradition. But as well if we treat this phenomenon as a fresh vantage point from which to re-examine the respective human rights instruments we can generate a range of further comparative insights into the way they operate and the factors that influence their success. And again this is a very different set of insights from those that present from the vantage point of the constitutionalism democracy dilemma. Well in the paper I identify a range of such insights and I don't have time to address all of them today but here are some examples. First what about the substantive reach of these two instruments in other words the rights that are included. This is such an obvious vector for comparison that one might have thought it would have been canvassed exhaustively. But that's not really the case in fact writers in the intermediate constitutionalism tradition emphasize overratching similarities in the substantive coverage of these instruments and don't really identify any differences of emphasis. If we ask whether there are differences in coverage that may assist in explaining the apparent disparity in performance in the areas of civil versus criminal justice some points of distinction come back into focus. The one that I want to highlight today concerns the substantive reach of the New Zealand Bill of Rights outside the criminal procedure context. The point here is that the list of rights in the New Zealand Bill of Rights Act is significantly abridged as compared with the Victorian Charter and indeed many other international comparatives. This is because the draughts of the New Zealand Bill of Rights were heavily influenced by the Process School of the United States Constitutional Theory epitomized by the work of John Hart Ely. In short they confined the reach of the instrument primarily to so-called process rights and emitted from the instrument rights that they believed might open up the way for judges to inject their own values into questions of substantive social policy. So for this reason the New Zealand Bill of Rights contains no generalized protections of liberty, security, property, privacy or even equality. Emissions that if you focus on them are pretty extraordinary in international terms. Well if we turn to examine the Victorian Charter jurisprudence against that background it's certainly fascinating to observe how much of it has concerned these ghosts of the New Zealand Bill of Rights. Now more work needs to be done on this issue but the tentative proposition that I offer in the paper is that the abridged scope of the New Zealand Bill of Rights may have had an impact beyond that intended by the draughts. It may have contributed to the siloing of New Zealand Bill of Rights jurisprudence in the area of criminal procedure. The broader points are that differences in the substantive reach of these instruments may have more salience than is disclosed by the intermediate constitutionalism tradition and that comparative study may help to reveal that significance. Another rather obvious factor for comparative analysis that's neglected by the intermediate constitutionalism tradition is the remedies that are available for public authority non-compliance, whether in the criminal or civil and administrative context. And in fact that's such an obvious point that for one of time today I'm going to gloss over it and move instead to a related but somewhat broader issue which is the question of how, when and where a human rights issue can be raised and I just want to highlight two points of contrast. The first concerns the existence of procedural formalities to raising an argument under the Victorian Charter that have no counterpart in New Zealand. So section 35 requires parties before the Victorian Supreme Court or County Court to notify the Attorney General and the Victorian Equal Opportunity Human Rights Commission of the intention to raise a Charter issue. Now this apparently technical point may go some considerable way to explaining the relative salience of Bill of Rights issues in the criminal context in New Zealand as compared with Victoria. Certainly practitioners in Victoria believe that section 35 is a significant deterrent to criminal Charter litigation. In other words a point that may seem at first glance like a matter of detail turns out to have broad significance not only for access to justice but for the general complexion of human rights jurisprudence within the respect of jurisdiction. The second point of contrast relates to the role played by the Victorian Civil and Administrative Tribunal and Administrative Tribunal of General Jurisdiction of which there is no New Zealand counterpart. Approximately 68% of first instance civil Charter decisions were issued by this tribunal whereas in New Zealand a mere 23 out of 735 civil cases in the five-year sample were delivered by a tribunal. Well that raises important questions about the significance to the development of human rights culture of providing accessible and expensive and informal sub-judicial fora. A point that I developed slightly more fully in the written paper and I was very interested in what Dame Shahn had to say on that question of administrative justice this morning. The final vector for comparison that I discussed in the written paper concerns broader features of the litigation culture. I only have time to touch on that very briefly but nobody who's spent any time observing the conduct of human rights cases in the two jurisdictions can fail to have been impressed by the profoundly different litigation environment in which human rights issues are litigated. Much of this concerns the way in which the Victorian Bar and legal community have embraced the Charter in a way that New Zealand lawyers even now have failed. Lord Reed may be interested to hear that the problem of council preferring human rights arguments over orthodox administrative law arguments is emphatically not one that has been confronted by the New Zealand courts in fact quite the opposite. The explanations for this is somewhat intangible but perhaps include the historical absence in New Zealand of a rights claiming legal culture or of a tradition of public interest litigation and the absence of strong networks to support pro bono delivery of legal services outside of the criminal trial context. A more concrete factor concerns the existence in Victoria but not New Zealand of a state institution with broad responsibility for monitoring progress with implementation of the Victorian Charter and of intervening in Charter cases. So in conclusion the research agenda that is presented here is not intended to be comprehensive but to be both illustrative and supplementary. I don't suggest that the issues that provide the focus of intermediate constitutionalism scholarship are unimportant nor even that the additional vectors for comparison that I identify here are more important. I simply want to suggest that the picture presented by intermediate constitutionalism scholarship is incomplete in important ways. Most centrally that elides almost completely the important question of how well these instruments succeed in influencing or constraining the exercise of public power. Once that broad question is brought back into focus a number of neglected vectors for comparison come into view. The particular rights that are protected, the availability and accessibility of remedies, the availability of accessible fora in which to test one's claims, the existence or not of technical impediments to taking a claim and the official and unofficial support structures that sustain a flourishing human rights culture within the jurisdiction for example. As a result of these lacunae the intermediate constitutionalism tradition is less than satisfying as a comprehensive comparative account of the efficacy of the Commonwealth Model instruments. Perhaps it's not intended as such but if not or even if so more of a different kind of comparative work is needed to fill in the blanks. Thank you.