The superlative WA draft

My recent post on Charter s7(2)’s ‘subject under law’ language led me to check out the draft Human Rights Act proposed as part of the WA rights consultation. That draft has been around for a year, as it was promulgated by the WA government before the consultation (a toned down variation of the ‘statute first, consultation second’ process I proposed before 2020.) But, good process or not, the draft is a landmark because of its terrific drafting, which puts the Charter to shame. 

To see what I mean, consider the single biggest drafting mystery of the Charter: what the hell is its legal effect? In particular, are there any obligations other than the conduct mandate (the Charter s6(2)(b) mystery)? And are there any remedies other than the ones ‘permitted’ by the remedies provision (the Charter s39 mystery)? Now read Part 3 of the draft WA Human Rights Act:

Part 3 — Observance of human rights

28. Who is required to observe human rights
This Act does not require a person to act or make a decision compatibly with human rights, except as provided in Part 6
[the WA equivalent to Division 3 of Part 3 of the Charter, on obligations]

29. Breaches do not give rise to cause of action, except as provided by this Act
(1) This section does not affect the operation of section 36. [the equivalent to Charter s. 36, on declarations]
(2) A breach of a human right does not create any enforceable right or any cause of action, except to the extent provided by section 41 [the equivalent to Charter s. 38(1), the conduct mandate]
(3) A person is not entitled to damages or any other pecuniary remedy because of a breach of a human right.

And there you have it: the entire effect of the draft WA HRA on people (i.e. responsibilities and remedies) is provided for by the declarations power,  the conduct mandate and the remedies clause. That’s it. Now, as it happens, I happen to think the same is true for the Charter. But, because the Charter doesn’t say so, Victorian courts will take many months – or most likely years – to reach those conclusions. And there’s a risk – a big risk – that they will reach the opposite conclusion.

The blame is on the drafters of the Victorian Charter, who – except for repeated declarations of parliamentary sovereignty – simply wouldn’t put in explicit terms what the Charter doesn’t do. Why the drafters wouldn’t is a mystery.  It could be because they didn’t want to make it clear how little the Charter did (a sly way of making the Charter more politically palatable to the pro-rights lobby.) It could be because they wanted to leave room for the courts to read more into the Charter (a sly way of getting an enhanced Charter through despite the objections of the anti-rights lobby.) It could be because they didn’t think about these fundamental issues (whereas the WA drafters obviously did and were willing to be upfront about the government’s preferred answer.)

As it happens, I have reason to think that the difference has nothing to do with the Charter but rather reflects a different approach to drafting in the two jurisdictions. Before the Charter took over my professional life, I used to research DNA sampling. One of my bugbears was the (so-called) Model Forensic Procedures Bill, put forward by SCAG to promote the (unnecessary) goal of uniformity in Australian DNA sampling laws. The frustrating thing about the Bill was that it was full of permissions – police can ask people for DNA, police can set up databases, etc – that were completely unnecessary (just like Charter s. 39(1)). The Bill completely failed to answer the big question in DNA sampling, which is what can’t the police do.: can they ask anyone for their DNA for no reason? Can they take DNA from inanimate objects? Can they create unofficial DNA databases on a laptop? Can they get DNA from relatives? Can crime scene and victim DNA be matched against unsolved crimes? Etc. See my measured academic article and my less measured submission on the flaws in the Bill and the process that led to it.

Importantly, for present purposes, the drafting of the Model Bill was taken from Australia’s very first major DNA statute, which was enacted by… you guessed it, Victoria. Most of Australia’s jurisdictions followed SCAG like sheep, ramming carbon (or almost carbon) copies of the Model Bill through their parliaments in 2000. As a result, they have spent the last seven years gradually fixing drafting errors (or sweeping them under the carpet), which is the major reason it’s taken that long for Australia’s national DNA database to get up and running. The major exception to this pathetic exercise in uniform mediocrity was WA. The WA Bill kept the main principles behind the Model Bill but completely ditched the drafting, instead starting from scratch. The result was that most of the mysteries that bedevilled (and still bedevil) the eastern state’s DNA laws never arose in WA. This suggests to me that whoever drafts WA laws is committed to the kind of drafting I admire: an emphasis on laws that are clear on what they are doing, what they are doing it to and when. I can’t say the same for Victoria.

Here are some other examples:

  • The WA provision on statements of compatibility expressly provides that a statement is still required even when a bill contains an override declaration (whereas the interaction of Charter ss. 28 and 31 is quite unclear)
  • The WA provision on reasonable limits is clearly limited to the operation of the interpretation mandate (whereas the interaction of Charter ss. 7(2) and 38(1) is unclear.)
  • The WA provision on notice to the A-G is non-mandatory (thus probably avoiding the problems apparently raised by Charter s. 35)
  • The WA provision that aims to avoid the supposed clash between the conduct mandate and the ‘single common law of Australia’ exempts courts’ ‘judicial functions’, rather than the broader and vaguer ‘non-administrative functions’. Not that I like either exemption much!
  • The WA provision on remedies is much clearer than the Victorian one, both because of clause 29(1) set out above and because of its own terms. (I intend to explain that when I finally get back to Charter s39(1). This post is, in part, a way to prod myself to finish my series on that clause.)
  • Also, the WA provision on non-Charter remedies is crystal clear, in comparison to the non-plain English Charter s. 39(2).
More generally, the WA draft makes good use of sub-paragraphs and divisions to clearly distinguish different components of human rights and operating provisions, and different areas of operation. Its Part 2 is considerably more user-friendly than the Charter’s Part 2, which reads like the turgid ICCPR (which has the excuse of being drafted fifty-odd years back.) I’m not saying that  the WA draft is unimpeachable, either in its substance or its drafting. But the comparison with Victoria (and, to a lesser extent, ACTHRA) is eye-opening.
So, here’s hoping that the federal Charter movement (and the stalled movements in Tas and, alas, WA) take the lead from WA’s draft. I fear, alas, that Victoria’s Charter – bound to be given much more attention than ACTHRA, let alone a mere draft from WA – will become the template for national laws, just as Victoria’s crappy DNA laws were. Indeed, the WA Consultation Committee recommended that some of the WA draft be altered to fit the Victorian version, including the ‘administrative function’ language. In any case, Victoria is basically a lost cause, except for the possibility of tinkering at the 2011 and 2016 reviews. A bad draft in parliament is as impossible to get rid of as a bad draught in your living room.

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