Review: Australian Bills of Rights

Carolyn Evans and Simon Evans are colleagues of mine and, indeed, both hold senior positions in Melbourne Law School. So, trust this review at your peril. That being said, it’s worth mentioning that I find book reviewing to be a bit of a dubious exercise, at least for good books.  The reviews are either synopses – so why not just read the back cover? – or ‘review essays’, which aren’t really reviews at all. If you want to hear me blab about broader issues, then there are 67 other posts you should be reading instead. Surely the only point of reviews is to find out what (if anything, but there’s always something) is wrong with a book (which is not likely to be a topic covered on the back cover.)

So, let’s get the positives out of the way quickly: this book, written by two public law academics who have been studying parliamentary human rights statutes since before the Charter was a twinkle in Hulls’s eye and who’ve written the balance of the good articles on the ACTHRA and the Charter in the last few years, is mandatory reading for anyone who wants to (or has to) seriously engage with these peculiar statutes. In particular, a number of sections of Australian Bills of Rights simply have to be the starting point for all informed discussion in the next few years on the following issues:

• parliamentary scrutiny (most of Chapter 2)
• interpretation mandate (Chapter 3)
• remedies (Chapter 4)
• limitations provision (Chapter 5)

These sections are all notable not only for their rigour and depth, but also the breadth of their treatment of these issues, straying far beyond the text of each provision but not beyond their meaning. And the book’s discussion of the scope of the Acts (Chapter 1) and the relevant foreign law sources (Chapter 6) are certainly handy. Even at just 200 pages (quite small print) when you leave out the appendices, it’s easily worth the $95.

That’s enough praise, I think. Time for some criticism, starting with the front cover.

Albrechtsen’s bodgy column

It looks like the Australian isn’t going to publish a letter to the editor I wrote in relation to Janet Albrechtsen’s recent column (‘Beware the Galloping Imperialist Judiciary‘) opposing a federal charter. Here’s what I wrote:

Janet Albrechtsen (23/4) repeats a common claim of the anti-charter-of-rights movement: that Canada’s provision allowing governments to override that nation’s Charter of Rights ‘has never been used, not once since the charter was introduced more than 20 years ago.’ She needs to obtain a better pamphlet. Override clauses were applied to hundreds of Quebec statutes in the 1980s, including twelve overrides by the Charter-friendly Liberal government, as well as by the governments of Saskatchewan, Alberta and Yukon Territory, on subjects ranging from language to education, agriculture and gay marriage.

You have to wonder why opponents of a charter need to make up claims about other countries and, for that matter, why the predicted judicial dictatorship is yet to emerge in the ACT (in its fourth year of its Human Rights Act) and in Victoria (in the fourth fully operational month of its Charter.)

I’ve heard this claim about Canada’s ‘notwithstanding clause’ (which is similar to the Charter’ s override provision) before. It seems to be a misunderstanding of one of two much narrower claims: that Canada’s federal parliament has never used the clause; and that the clause has never been used in response to a court judgment. Also, these facts – and Albrechtsen’s false claim, for that matter – are not necessarily evidence of a judicial monologue; they may also be evidence of the courts deferring (rightly or wrongly) to the legislature.

To improve my chances of publication, I didn’t go into another wrong claim in Albrechtsen’s column:

The real stealth bomb in a charter of rights is the interpretation clause. Hang in there if it all sounds a bit dry. Charter advocates will hope you start tuning out right about now. Section 3 of the British Human Rights Act – more or less repeated in the Victorian Charter – says that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This is an open invitation to judges to ignore even the clearest of parliament’s intent. The House of Lords has said so, describing this innocuous little “reading down” provision as “dangerously seductive”, and “unusual and far-reaching in character”.

She’s right about Britain, but wrong about the Charter. That ‘more or less’  hides a crucial difference between s. 3 of the UK HRA and Charter s. 32(1):

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

Now, that omission’s gotta be deliberate!

The conclusion of my letter shouldn’t be taken as meaning that I back a federal Charter (or Victoria’s for that matter.) I just don’t think much of the ‘judicial dictatorship’ argument.