Review: Human Rights Charters in Australia

Peter Faris & Mirko Bagaric’s Human Rights Charters in Australia is the first and most expensive of the three current Charter books, coming in at $120. It’s published by a small press – Sandstone Academic Press – which may explain the high price (for example, because small presses can’t negotiate bulk licences for reprinting Victorian legislation.)

It’s not clear to me whether or not the small press also explains the lack of the usual trappings of legal treatises: tables of legislation and cases; an index; headers that show the relevant chapter title, rather than just the authors and the book’s name over and over; and basic proof reading. These limitations alone leave the book of doubtful utility to the average professional trying to grasp these new statutes.

Of greater concern is the content. As noted earlier, the bulk of the book is devoted to rights, rather than the operational provisions of the two statutes (which are considered in just one of the book’s twenty-four chapters.) This choice is explained as follows:

The title of the Charter includes the important term ‘responsibilities’ and this term is interpreted in s 15(3)… There are no other responsibilities or obligations set out in the Charter. This is the reason why the book focuses on the concept of rights, as opposed to responsibilities.

This makes no sense. If ‘responsibilities’ is an important term, then why would it not be a focus? How is that term interpreted in s15(3) (which is just a limitation to one right?) How can it be said that there are ‘no other… obligations set out in the Charter’ when Part 3, Division 4 is titled ‘obligations on public authorities’ and imposes a key obligation in s38(1)? If Parts 1, 3 and 4 aren’t about responsibilities, then what are they about and why wouldn’t that also be a focus? I cannot see how a book that claims to be about ‘human rights charters in Australia’, rather than just human rights in Australia, can largely ignore three quarters of each statute.

Chapter One sets out the background of the two statutes, although it is curiously titled ‘Victoria embraces Human Rights’.  (A quirk of the book is that it refers to the Human Rights Act 2004 (ACT) as the ‘ACT Bill’. I  don’t know if ‘Bill’ is a shorthand for ‘Bill of Rights’ (a term rejected in the HRA) or is used because ‘ACT Act’ sounds silly. The shorthand is a constant distraction.) As is the nature of the times, the history is already dated, e.g. ‘The Federal government has expressly indicated that it will not enact a bill of rights at the national level’ and there’s no coverage of this year’s amendments to the ACT HRA. But there are also avoidable errors, ranging from the minor (e.g. claiming that the last rights referenda were ‘in 1983′) to the major (referencing budding Charter movements in WA, Qld and NSW (?) but completely ignoring Tasmania.) Moreover, the background completely ignores the government pronouncements and consultations that led to the Victorian and ACT statutes.

Chapters Two and Three respectively discuss rights in general and the statutes in particular, but their core is the authors’ argument that the statutes should be interpreted as ‘taking rights seriously’. This is not a broad symbolic characterisation , but a technical legal one. The authors argue that both statutes, but especially the Charter, should be interpreted as giving all the rights they set out ‘legal force’, because anything short of that won’t achieve their aim of promoting and protecting rights. Bargaric and Faris acknowledge that the characterisation they favour is clearly inconsistent with the intentions of the parliaments that enacted the statutes, but claim that such ‘extrinsic’ matters should be rejected in favour of the statutes’ ‘clear meaning and effect’. They explain:

Some commentators may disagree with this wide-ranging social engineering process – in fact we were critics of the Charter. However, in a democracy governed by the rule of law, such views, even if held by judges, obviously cannot override the wishes of Parliament and provide a basis for clipping back the rights enshrined in the Charter. Unintended outcomes from the Charter must be dealt with in the political, not judicial arena.

At this point, it becomes hard to take this book ‘seriously’. The parliaments’ clear intention not to give the various rights ‘legal force’ shouldn’t override the ‘wishes of Parliament’? As followers of the ACTHRA and Charter know, there are arguments that the listed rights have some legal force, but those arguments are: (a) based on particular provisions (Bargaric and Faris don’t even mention s6(2)(b), but rather focus on the ‘sets out’ language in s1(2)(a) – a purpose provision, why not s7(1)?); and (b) unlikely given the constitutional concerns that surround them and the uncertainty of any supposed legal force the rights have. (Bargaric and Faris are rightly dubious about the constitutional concerns but ignore their relevance to interpreting the provisions.)

Some may wonder whether the authors who ‘were’ critical of these statutes are still trying to undermine them. Alternatively, this broad-brush legal argument may be an excuse for giving little treatment to the novel and complex provisions in each statute that explicitly provide for some legal force . Barely two pages are given to the interpetation mandate. The discussion of s32(1) ignores the ‘purpose’ restriction in that section, instead arguing that now all Victorian statutes must be interpreted as if they have ‘an additional purpose… to protect and promote Charter rights’ (although, curiously, the effect of s32(1) is limited ‘by the fact that most of the rights in the Charter are not dealt with or touched on in other statutes and hence the scope for inconsistent interpretation is limited’. They obviously have never read a statement of compatibility or a SARC report.) Section 38(1) is barely mentioned (s38(2) is in a footnote) with the sole discussion being the exclusion of ‘Courts’ (not tribunals?), which we are told ‘makes no difference’ as courts must still ‘give effect to the Charter according to the stated objective and literal mening of the document’. Alas, this sort of non-reading of the statute has some similarities to some of the jurisprudence to date from the ACT and Victoria. I don’t think this is a case of great minds thinking alike, but rather a common failure to take the statutes seriously.

The remainder of the book is all about the human rights Parts of each statute. However, the book does not focus much on the wording of each right. The rights are typically not even extracted in the chapters that discuss them, again reducing the book’s utility to practitioners and making it hard to match the authors’ arguments to the provisions. Nor does the book purport to summarise the relevant comparative law:

To the extent that international jurisprudence is relevant to the interpretation of the Charter and ACT Bill, logically the most relevant document is the ICCPR. Therefore, most of the international jurisprudence we analyse in this book is mainly in relation to decisions pertaining to the ICCPR.

That logic ignores not only the provisions of the statutes that encourage a wider comparative focus, but also the likelihood that domestic decisions will be much more relevant to Victoria and the ACT than the quite different subject-matter that tends to reach the UNHR Committee.

The coverage of the rights – chapter by chapter – is patchy and very uneven, with some rights getting lengthy treatment and others getting little. Most chapters extract a chunk – sometimes a big chunk – from a relevant general comment of the UNHR Committee or, failing that, a single case from another jurisdiction, without much discussion of its applicability (e.g. the ‘double jeopardy section’ has a huge extract from the pre-HRA ACT decision in Ardler, but it extracts the lengthy discussion of the meaning of a phrase ‘acts that constitute the offence charged’ in a non-double-jeopardy context – the scope of a special hearing where someone is unfit to plead – while ignoring the double jeopardy issue in that same case – appeals from ‘acquittals’ by such a hearing.) The chapters also typically run through either existing legislation that promotes a right or existing legislation that arguably infringes a right (although sometimes, confusingly, that’s federal legislation, e.g. sedition laws.) Some chapters completely ignore the HRA and Charter, e.g. the chapter on retrospectivity, which is all about Kable.

In short, the coverage of rights is neither comprehensive nor trustworthy, reducing the bulk of the book – if not all of it – to a starter resource strictly to be used as a pointer to some potentially relevant matters and not to be relied on for its treatment of those matters. If this was the sole book on the topic of the HRA and Charter, I’d hesitate to recommend forking out money for it, let alone $120. With two other books recently published – to be reviewed later in this blog – there’s no reason to even look at this one.

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