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. I don’t envy people who have to do covers for law books, because laws are hard to draw. Human rights law is doubtless a particular challenge. Whoever did the cover for Australian Bills of Rights went for a safe option: putting a map on the front, complete with some pretty – if meaningless – stylising., a funny echo and some… clouds? My problem is that the particular map chosen –  Australia and East Asia – is totally wrong for the subject-matter. Human rights law, at least the version applied in Australia, isn’t regional at all. Rather, its origins are quite clearly on the opposite side of the globe. This rather old-fashioned feature of the Charter shouldn’t be hidden. Amazingly, the map even leaves out New Zealand (although Hong Kong might be buried under one of those clouds.)

What about the content? Well, I’m also unhappy with the table of contents, and more broadly the structure of the book. The book starts well enough, with a detailed treatment of the scope of the Acts. Intriguingly, this includes an overview of the rights in each statute, which is the only treatment the various human rights get. As my spotcheck showed – and it’s obvious enough from a flick through the book, albeit not quite an advertised feature – the book is really only about the operative provisions of the statutes. I have no problem with that; if a book has to choose between covering Part 2 and Part 3 of the Charter, I’d go for Part 3 anyday, as that’s the hard bit. Another good thing about the coverage of rights is that the authors divide the rights thematically – equality, bodies, physical liberty, mental liberty, public rights, family rights, procedural rights, cultural rights (much better than frickin’ FRED) – which is a great way to understand their interaction. I hope that when more rights content is added in the next edition, the authors stick to this organising approach.

Not so critical yet, hey? But now I’m at chapter 2: ‘Obligations on the Legislature, the Executive and Public Authorities’. What?!!! So much for sensible thematic divisions. First off, why bundle together parliamentary process and the conduct mandate, which are two very distinct and barely related bits of the Acts? Second, the Acts don’t regulate ‘The Executive’; they regulate ‘Public Authorities’, which are a very different beast, excluding bits of the executive (the Governor) and including non-executive bodies like courts, tribunals, the police, hospitals. Indeed, Chapter 2’s discussion of ‘the government’ is all about public authorities. The chapter concludes with another barely related topic: Commissions and the Ombudsman.

Third, and worst of all, the most important obligation in the Acts – the conduct mandate – isn’t given comprehensive treatment in this Chapter. Rather, the Chapter only discusses the defences to the conduct mandate (and gives far too little attention to 38(2)). The complex definition of public authority is covered in Chapter One and the remedies for breaches are in Chapter Four. As for the actual conduct mandate itself, the book promises that this will be discussed in Chapter Four too, but that Chapter only discusses the ‘proper consideration’ requirement, and it’s buried amongst the administrative law remedies. (Think that there’s nothing much to discuss about the tougher part of the conduct mandate? Try working out when someone’s conduct – or an institution’s conduct – can breach a human right. And then factor in the ins and outs of positive and negative conduct, and once-off and continuing conduct, and direct and indirect conduct, and so on, i.e. standard issues in a criminal law course.)

In short, the conduct mandate is not given a coherent, accessible treatment and lots of it falls through the cracks. This leaves someone like me – who thinks that the conduct mandate is the standout provision (and the trickiest major provision) in the Charter – quite unhappy indeed. The discussion that the book does make of the conduct mandate – once you find it, if you can find it – is, of course, good stuff. But the whole is certainly no more than – and I fear less than – the sum of these parts.

The other (related) problem is the treatment of the courts. Again, there’s a poorly named chapter : Chapter Four: ‘Human Rights Acts in Courts and Tribunals’ . First, the name – juxtaposed with Chapter 2 – further obscures the significant fact that courts and tribunals are also also public authorities, at least in their administrative functions (and, in the ACT, for tribunals, in all their functions.) That dual position is worth a lot of attention, I think. Disappointingly, the book gives very little treatment to the difficult distinction between administrative and non-administrative functions in courts, instead focussing mostly on tribunals (even though that only matters in one of the two jurisdictions.) Second, the title also sits oddly with  Chapter 3, on interpretation. The authors justify the latter on the ground that the interpretation mandate applies to everyone. That’s correct, but basically spurious; in practice, everyone but courts defer to lawyers, who try to read statutes the way courts do. By contrast, I think that focussing on courts and tribunals – in what is basically a chapter on remedies  – overstates the significance of those institutions in providing remedies for breaches of the conduct mandate (and whatever other obligations might be buried in the two Acts.) The Ombudsman provides another key remedy, one that is free of gibberish like Charter s.39(1), although there are other limits. And, unlike interpretation, unlawfulness is something that even non-lawyers worry about, whether there’s a remedy or not.

I realise that it’s not so easy to work out how to structure a book on the Charter, because there are some real mysteries that are yet to be resolved about that statute’s basic structure. And there’s the ACTHRA, which will dramatically change its structure nine months after this book’s publication. But I think that the authors have chosen a dud path, one that may well be influenced by their deep study of other countries’ human rights laws, which (UK aside) lack an explicit conduct mandate and (in all of them) bind the courts alongside the executive. Following that model in a local book  will encourage, rather than discourage, the sorts of mistakes that courts have been making so far in Victoria. Even if it turns out that s6(2)(b) has a substantive effect – something the authors endorse – that won’t, in my view – and their I think – remove the need to pay far closer attention to the oddity of having explicit obligations but hobbling the courts, the opposite approach to elsewhere.

I think it’s possible to see some of these errors creeping into the authors’ otherwise fine analysis of other key provisions of the Acts. In discussing s6, the authors wrongly claim that the courts’ function of supplying remedies for breaches of the conduct mandate is covered by s6(2)(c), which says that public authorities have functions under Division 4 of Part 3 (which includes Charter ss38 and 39.) But, when courts are handing out remedies, they are exercising judicial functions, which takes them outside the definition of public authority. In Chapter 5, on reasonable limitations, the authors claim at the start that Charter s7(2) will matter to public authorities, because they will have to determine whether their ‘conduct’ ‘subjects human rights… to reasonable limits that can be demonstrably justified.’ But s7(2) is about laws, not conduct. The relevant analysis ought to start with s38(2). At times, the authors also don’t fully engage with the details of the two statutes, particularly their interaction with other local statutes. Again, perhaps this is a result of their study of other, more standalone, laws. In the discussion of the scope of the interpretation mandate, they don’t dig all that far into how each jurisdiction defines the legislative instruments that are affected. In the ACT, for instance, the definition extends – once you sort through it – to documents made under legislation. That includes search warrants, which could be a quite significant – and unique – occasion for rights-based interpretation. The authors also don’t follow through on the way that Victoria’s Charter draws on definitions in other statutes, causing them, e.g. to mistakenly claim that the Chater’s equality rights don’t cover nationality discrimination. (Apparently, there’s a queue to inform them of that error!)

As readers of this review can readily see, a lot of this negativity is really praising with faint damnation. These are nitpicks. But they are, I feel, important ones when the law in question is highly subject to such details. I hope that the second edition – which I predict we’ll see next year, much as both authors blanch at that – won’t be distracted by the demand to cover more rights. I’d like to see more – much more – on those pesky operative provisions. This book will, eventually, be Australia’s Butler & Butler, or Hogg. But not with this structure.

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