Review: An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities

My third and last review of the new Charter books (the other two are here and here) is the most straightforward. Nice meaningless cover, overlong meaningful title – what dreary marketing wonk decided that ‘The Annotated Charter’ wouldn’t sell? – and exactly what it promises.

There’s a lot of sense to annotating the Charter. The statute is full of technical words, it’s short and a lot of its provisions have comparative analogues that are full of handy case law that locals need pointers too. But there are also some good reasons not to annotate the Charter: it’s full of bad drafting, a lot of the provisions make no sense on their own and a lot of the comparative analogues aren’t that analogous because the Charter is different in key ways. Barristers Alistair Pound and Kylie Evans do a good job in maximising the benefits of annotating and avoiding the pitfalls. This is no slapdash effort, but instead a careful and academic, albeit practitioner-focussed, work.

The boring praise: More than just an annotation, this book matches and in some ways exceeds Evans and Evans in its detailed mini-essays on:

• the meaning of public authorities (s4)
• the operation of the reasonable limits provisions (s7)
• the operation of the interpretation mandate (s32)

This depth, combined with the sheer utility of an annotation at this early stage of the Charter’ history, makes AAGTTVCOHRAR – yeccch! - without doubt the most useful Charter book to own . It will remain so at least until the second edition of Evans and Evans comes out. Expect to see a sea of brown squiggly covers at the bar table (and maybe the bench) when the first proper Charter case hits the Court of Appeal.

And now for the gripes:

The Charter vs the Pill

Over at The Court, there’s a lengthy discussion of a 5-4 decision of Chile’s Constitutional Court striking down a decree requiring the contraceptive pill to be distributed through the public health system as incompatible with that country’s right to life. The majority held that: (a) life begins at conception; (b) the right to life is absolute; (c) it’s possible that the contraceptive pill stops fertilised gametes from implanating.

The Charter permits (but does not require) a consideration of the decisions of Chile’s (and everyone else’s) courts on human rights issues in determining the meaning of Victorian statutes:

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

So, the Chilean decision could be considered when interpreting Charter s. 9:

Every person has the right to life and has the right not to be arbitrarily deprived of life.

This provision differs from the equivalent in the ACT HRA in not specifying that life begins at birth. (The Chilean provision specifies that the right to life includes those ‘about to be born’!)

However, even if Charter s. 9 is interpreted as protecting life from conception, it’s unlikely that the remainder of the Chilean decision will be followed here.