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! Continue reading

Britain learns from Victoria

Victoria’s Charter clearly owes more to Britain’s Human Rights Act than any other (domestic) rights document. So, it’s interesting that Britain is looking to Victoria in its examination of whether it should introduce a new British Bill of Rights. The UK Joint Committee on Human Rights recently issued a report on its preferred model, which included the following references to Victoria:

  • The report cited Victoria (alongside other Australian jurisdictions) as a rebuttal of the claim that a bill of rights can only emerge following a crisis (like the American or French Revolutions, or Apartheid.) The Australian statutes are actually no evidence of this, as the rights they protect (like the UK’s own Human Rights Act) are almost exclusively drawn from international treaties that were developed in the aftermath of World War Two. Canada, also cited by the Report, is a better example (although it did come in the midst of the Quebec seccessionist crisis.)
  • The report endorsed Victoria’s approach of placing ‘the legislature central to the process of human rights protection’. The JCHR’s skeleton draft bill indeed copies Charter s. 28’s requirement that the government issue a detailed statement of compatibility stating how a bill is compatible with human rights (which it noted was inspired by the JCHR’s own experience.) Its version of Charter s. 28 is enhanced by a requirement for a human rights ‘impact statement’ and the extension of the requirement to statutory instruments and orders in council. On the other hand, the draft bill contains no provision equivalent to Charter s. 30 requiring a JCHR report on each bill, presumably reflecting its own decision not to provide a comprehensive scrutiny function.
  • The report endorsed Victoria’s requirement in Chater s. 37 that the government make a formal response to Parliament in the event of a declaration of incompatibility. However, its draft expands on the requirement, setting a three month deadline for an initial response, a six month deadline for a remedial response, a requirement for a parliamentary motion in response to both statements and a power for a court to judge the remedial action. Needless to say, the JCHR draft doesn’t use Victoria’s dreadful ‘declaration of inconsistent interpretation’ terminology.
  • The report adopted Victoria’s requirement of statutory reviews, replacing the four-year and eight-year reviews by the Attorney-General mandated by Charter ss. 44 and 45 with a single five-year review performed by an ‘independent panel’.
  • The report wholeheartedly endorsed the consultative process that led to the adoption of Victoria’s Charter, ‘in particular its focus on public engagement’.

All up, a very positive verdict on the Charter. That being said, the JCHR folks seem to follow the ‘if you don’t have anything nice to say, don’t say it’ approach, at least as regards comparative lessons of the negative variety. Notably, the JCHR wholly rejected the government’s proposal for a British Bill of Rights and Duties: (BORAD!) Continue reading