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:First, one thing that makes annotations so useful is that they are a substitute for carrying around a copy of the statute itself. This book bungles this. The relevant provisions are not that easy to find! Sure, they’re in order, but the book takes a minimalist approach to the use of headers, footers and sidebars that make it easy to quickly flick. The only pointer is a small print section number at the top left of each page. Why not at least put this in the outside margin of each page, instead of burying the right-hand pointer in the crease? Astonishingly, the ubiquitous bold print paragraph numbering – , , etc – bears no relation to the Charter section under discussion. And the actual text of each new provision isn’t even on a fresh page, but just appears randomly immediately after the last section’s discussion happens to stop. So, you have to flick forward, flick back, flick up, flick down, turn the page over, etc. You’d think that Thomson would be good at doing annotations, given how many it puts out. You’d be wrong.
Second, the annotation does a spectacularly lousy job at cross-referencing definitions. Each section begins with a list of the defined words in the section and then informs you that they are all defined in s3. Given that none of the definitions in s3 is lengthy, why not just give the definition right then and there, rather than forcing the reader to flick – back and forwards – to s3 to find out that ‘person’ means ‘human being’ or whatever? And why not underline or bold the defined words in the text of the section itself? Where is the value adding?
Third, the annotation also mostly fails to drill down into definitions that depend on words in other Victorian statutes. We are told that words are defined in other statutes, and sometimes given a paraphrasing of those other definitions. But why not just give us the definitions themselves, and any further terms within those definitions that are defined elsewhere? In particular, the annotation declines to give its readers the various definitions of attributes that are taken from the Equal Opportunity Act. Instead, we are told to read another Thomson book about anti-discrimination law (which will presumably be chockers with non-Charter discussions about exemptions and procedures and the like.) Personally, I’ve found it essential to staple the first ten or so pages from the EOA into the front of my copy of the Charter. This annotation fails this simple test of utility. At the same time, it is willing to point readers to overseas cases whose relevance depends entirely on drilled-down definitions the annotation refuses to supply, like ‘race’ including ‘national origin’.
Fourth, the annotation also fails to usefully point readers to all the relevant comparative analogues. While the discussion of most sections points to at least one overseas analogue (typically either the ICCPR or the UKHRA), the only comprehensive list of all relevant comparative provisions is in a table near the start. This table: (a) only covers rights, not operative provisions; (b) doesn’t cover Hong Kong or the USA; (c) doesn’t include the text of the provisions. Why aren’t these provisions set out as a matter of course in the text of each section? A handy opportunity, missed? Why? To save trees?
Fifth, while there’s a PLENTY of good content here, this book, like the other two, gives too little treatment to the conduct mandate. Here, the problem seems to be the book’s origins in Thomson’s admin law collection. Most of the discussion focusses on the lesser mandate, requiring public authorities to give ‘proper consideration’ to human rights in decision-making. (I’m not an admin lawyer, so…. yawn!) There are just two paragraphs on the tougher requirement: to act compatibly with human rights. Moreover, both of them follow what I consider to be a very dodgy argument (also made, in passing, by Evans and Evans): that s38(1) doesn’t bar conduct that is ‘reasonable’ according to the broad test in Charter s7(2). But Charter s7(2) is concerned with limiting laws, not conduct. The correct analysis therefore turns on Charter s38(2):
38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.
While Pound and Evans give more discussion of Charter s38(2) then the other two Charter books combined, their analysis is still brief and mostly devoted to a very narrow reading of it, basically limiting it to conduct that a public authority is required to perform by another law. They draw a comparison to the EOA’s statutory authority provision (without extacting it or even describing it) but neglect more pertinent comparisons to the equivalent provisions in the UK HRA and (from 2009) the ACT HRA. I don’t understand why I’m the only person who seems to think that Charter s38(2) is a major provision…
And that’s it for my criticism. (OK, they also weirdly refer to the Victorian Legislative Assembly as the ‘House of Representatives”! Weird.) Whether or not Victorians are lucky to have the Charter, we’re definitely lucky to have this book.