Justice Statement 2: Eclectic Boogaloo

Way way back in 2004, Attorney-General Hull’s Justice Statement first mooted the notion of a community consultation about protecting human rights. The statement had just two themes: modernising justice (reforming criminal legislation and so forth) and promoting rights (online legal resources, victims rights, the Charter and so forth.) Even though it was meant to outline goals for 5 to 10 years, Hulls has now released the much-foreshadowed Justice Statement 2, with three additional themes.

Some interesting proposals in the grab-bag:

  • Reforming criminal legislation (still), but this time we’re told that ‘stage 1 – criminal procedure’ will be introduced this year. The main idea is one of form, bringing multiple bits of statutes together. That also carries the prospect of reducing cross-institutional inconsistencies (though which way the inconsistencies will be resolved isn’t clear.) But also, the new laws:

will be easier to understand and more effective. For example, changes to appeals process will assist in reducing retrials.

Um, what? How will making appeals processes ‘easier to understand’ reduce retrials? That goal would presumably be better achieved by making trial processes ‘easier to understand and more effective’? But I guess you could reduce retrials by narrowing the grounds of appeal or widening the proviso. Some interesting Charter s. 24 and s. 25(4) issues to deal with, though.

Also potentially tricky Charter-wise: ‘The DNA scheme will be expanded to apply to more offences and to simplify processes for police collecting and retaining DNA.’ I guess that’ll come next year, shortly after the ECtHR brings down its major DNA retention judgment. And also: the plan to modernise the criminal offences in the Crimes Act so that ‘important elements of offences [no longer] apply by operation of the common law’ and are instead ‘written in the offence provision.’ There’ll be some mighty big statements of compatibility when stages 2 (police powers) and 3 (offences) appear.

  • Bail Act review: We are told only that ‘[t]he Government will respond to the VLRC report on bail which contained 157 recommendations to simplify the bail process.’ That sounds a touch luke-warm. Do you suppose that these two recommendations will be endorsed?: 

10. The new Bail Act and regulations should comply with not only the provisions but the intention of the Charter of Human Rights and Responsibilities Act 2006 and the Victims’ Charter Act 2006.

12. Bail decisions should be made on the basis of unacceptable risk. There should be no presumption against bail for any offence in the new Bail Act.

  • Exceptions to equal opportunity legislation: A current review ‘will inform a major overhaul of equal opportunity legislation’ sometime in 2009. Might be some interesting Charter cases on this question by then.
  • Privacy: ‘The Government’s privacy reform agenda will be shaped by: The review of privacy law by the Australian Law Reform Commission’. Including a statutory privacy tort?
  • Community engagement: Part of the rhetoric about the unified courtroom is that lay people don’t differentiate between the various courts, so… we should educate them about the differences? Thank god, no. Instead, ‘a common approach to community engagement should be developed’ by the courts, including webstreaming, providing information to the media accurately, quickly, accessibly and consistently and, my favourite, ‘adopting a common policy for the release of information about cases fore the courts and VCAT, including judgments, sentencing remarks, summaries, transcripts and documents filed by parties to litigation.’ Here’s hoping that the days of the invisible online presence and published judgments of the Magistrates and County Courts are numbered. For all we know, the Charter is being interpreted in those courts several times a day…
  • Judicial education: The scheme for ’10 hours of judicial education and professional development each year’ is flagged to include ‘the developments of new areas of law such as human rights law, and the rapidity of change in the legal environment’. Might I suggest devoting an hour or two to ‘reading simple statutory provisions’?

And, while we’re on that happy topic, there’s also this statement:

Legislation should be accessible and easy to read. Ordinary citizens should be able to read an Act and generally understand it. Legislation that is not clear increases the need for costly legal advice. A number of Acts will be reviewed because they have become outdated and difficult to use.

Hey, I know a statute that fits the bill perfectly! Alas, here’s some promises that DON’T appear in Justice Statement 2:

  • The government will introduce legislation in response to Justice Bongiorno’s call for urgent parliamentary attention to the problems posed by Charter s. 35
  • Victoria’s Parole Boards will, from next year, be subject to the Charter’s obligation to act compatibly with human rights and to give proper consideration to human rights
  • Legislation will be introduced to remedy the Charter’s appalling transitional provision…
Instead, aside from celebrating the enactment of the Charter itself and VEOHRC’s alleged finding that ‘the Charter has already had a significant impact’, all we get is this:
The success of human rights instruments such as the Charter depends on how well they are accepted and observed by governments and the general community. The Government will continue to develop and support strategies to improve public sector and community understand of, and respect for, human rights. Reviews of the Charter will be tabled in Parliament in 2011 and 2015.

And thus it becomes clear that there are two further problem sections in the Charter:

44(1) The Attorney-General must cause a review to be made of the first 4 years of operation of this Charter and must cause a copy of a report of the review to be laid before each House of Parliament on or before 1 October 2011.

(2) A review under subsection (1) must include consideration as to whether- (a) additional human rights should be included as human rights under this Charter, including but not limited to, rights under- (i) the International Covenant on Economic, Social and Cultural Rights; and (ii) the Convention on the Rights of the Child; and (iii) the Convention on the Elimination of All Forms of Discrimination against Women; and (b) the right to self-determination should be included in this Charter; and (c) regular auditing of public authorities to assess compliance with human rights should be made mandatory; and (d) further provision should be made in this Charter with respect to proceedings that may be brought or remedies that may be awarded in relation to acts or decisions of public authorities made unlawful because of this Charter.

45(1) The Attorney-General must cause a review to be made of the 5th to 8th years of operation of this Charter and must cause a copy of a report of the review to be laid before each House of Parliament on or before 1 October 2015.

(2) A report under subsection (1) must include a recommendation as to whether any further review of this Charter is necessary.

The rationale for these provisions was described by the Consultation Committee as follows:

Many participants considered that there is a need to build mechanisms into the Charter to ensure that it is evaluated, reviewed and enhanced. John Edney, a homeless man, explained this as necessary to ‘keep it in the forefront and to keep it away from the cobwebs in archives. Don’t let us become cobwebs’….

In considering when the Charter should be reviewed, the Committee is mindful of the competing considerations identified by the Mallesons Stephen Jaques Human Rights Law Group. They stated: It is important not to wait too long before an initial review of a Charter of Human Rights, but this must be balanced against the benefit of waiting in order to have access to a wider range of information and experience, thus enabling a better assessment of the effectiveness of the Charter of Human Rights…

The Committee agrees that one year would be too soon to have a worthwhile review of the Charter. In any event, annual reports on the work of the Charter will be prepared by the Victorian Human Rights Commissioner. We consider that the Charter should be first reviewed four years from the date it commences operation, that is, that the first review of the Charter should commence on 1 January 2011. This would ensure that the review would not be within the same parliamentary cycle as the commencement of the Charter. Such a review might be expected to take six months.

The problem with this discussion, and with the list of proposed reforms in Charter s. 44(2), is that they are all about political questions about the scope of the Charter. The discussion completely ignores the possibility that the Charter will have cobwebs from the start, in the form of badly drafted provisions and narrow or wrong readings by the courts

If the problems that this first year of the Charter in litigation have seen are allowed to fester until 2011 (and, indeed, until the government responds to the review, enacts amendments and brings them into operation), then the Charter will be a seriously damaged document. Doubtless, the 2011 review will be a good thing. But it is no reason to delay a careful and ongoing analysis of whether this novel statute has significant flaws that need immediate fixing. If any other jurisdiction is thinking of copying Charter ss. 44 and 45, then they should consider including legislative language to make it clear that these reviews are in addition to, rather than a substitute for, routine repairs of statutory language.

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