Human Rights Acts and the principle of parliamentary sovereignty The principle of parliamentary sovereignty as explained by Dicey guarantees Parliament, as the democratically elected body, the right to ‘make or unmake any law’ and obliges courts to ‘uphold and enforce it’.15 Parliamentary sovereignty is maintained through a Human Rights Act based on the dialogue model in several ways. First, if Parliament wishes, it is able to pass laws that contravene human rights, in line with its democratic mandate. If it chooses to do so, then it must publicly justify why through parliamentary processes. Secondly, the judiciary must interpret legislation consistently with Parliament’s intent. Thirdly, the judiciary cannot invalidate legislation for incompatibility with human rights. Fourthly, while Parliament may be prompted to reconsider legislation in light of court judgments, Parliament always has the ‘final say’ about laws.16 Finally, legislative dialogue instruments are ordinary Acts of Parliament. They are not entrenched in the Constitution and may be amended or repealed by Parliament. Any institutional power that flows to the judiciary is granted by Parliament itself and can be adjusted by Parliament. Other domestic human rights instruments draw a different balance between the powers of the legislature and the judiciary. For example, in the USA and South Africa, rights are entrenched in the Constitution, and courts have greater institutional power to enforce human rights. If the legislature passes laws that are inconsistent with human rights, courts are empowered to invalidate the legislation. The distribution of responsibility between the judiciary and the Parliament in the dialogue model recognises the dual role each branch has in fulfilling democratic principles. The courts are essential to maintaining the rule of law and protecting individuals against injustice – both fundamental democratic requirements. Legislation is usually drafted in a manner that is intended to be generally applicable to the broader population. Sometimes individuals or groups whose interests are not represented by majority concerns, slip through the cracks in these laws.17 Providing the courts with the ability to consider human rights in relation to individuals, while maintaining the intent of Parliament, helps to ensure that legislation applies fairly and inclusively to all, even those who may be low on the list of parliamentary priorities. In this regard, former UK Supreme Court Justice, Lady Hale, succinctly explained that ‘democracy values everyone equally, even if the majority does not’.18 In the pivotal case under the Human Rights Act 1998 (UK) (UK Human Rights Act), Belmarsh, Lord Bingham elaborated on the broader role of the judiciary in a democracy, in light of its functions under the UK Human Rights Act: It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true … that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself.19 Lord Bingham’s comment highlights that the court’s role under a Human Rights Act does not stand in opposition to democratic government, rather it is fundamental to its functioning to the fullest of democratic ideals. All three branches of government support a common cause – and the dialogue model recognises this intersection, encouraging the development of shared norms. FREE AND EQUAL A Human Rights Act for Australia 2022 71