The endangered charter

With the election of the Ballieu liberal government at the recent state election, the Charter of Human Rights and Responsibilities Act 2006 would seem to have entered the endangered species list. Before and during the campaign, then-shadow Attorney General Robert Clark stated that the Charter needed to be repealed or radically altered. In The Australian's legeal affairs section yesterday, we saw a tag-team effort by Peter Faris and Mirko Bagaric to support the repeal of the Charter.



The Muslims at the gates?
Faris' article trots out the bogey-man of Sharia law and notes that Islamic human rights instruments source human rights in the Koran before claiming that, because s32(2) of the Charter requires courts to consider the judgments of courts of other nations on human rights:

Quite obviously, those Islamic decisions powerfully state that Shariah law must be applied. The Victorian courts must consider these decisions under the charter, thus it makes it very likely that, at some stage in the future, Shariah law will be applied.

Now, I assume he isn't worried about the growing industry of Islamic banking and finance and how practice of that in Victoria threatens our very way of life. Because that would be a very silly argument to run, given the prevalence of Islamic finance, the need for Australian companies doing business in Islamic nations to comply with local law and the general indifference the common law has to whether commercial arrangements are structured in debt or equity. I suspect Faris is more worried about issues such as honour killings, arranged marriages and possibly issues concerning the equality of women. If so, he would be well served by paying attention to the reasonable limits provision, section 7, and explain how any areas of conflict between Shariah law and the law of Australia are "demonstrably justified in a free and democratic society based on human dignity, equality and freedom". He should also explain how any aspect of Shariah law that he is concerned about would be consistent with the purpose of a relevant statutory provision in Victorian law, which is being interpreted under s32(1). Because without explaining how the various safety nets built into the Charter would fail to operate, the article appears to be little more than scare-mongering

Regardless of these substantive concerns, the article is bookended by bizarre references to the recent development in Oklahoma to ban state courts from considering or using international laws, as well as Sharia, or Islamic law.


The text of the Oklahoma ban that voters overwhelmingly supported was:

The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law

As commentators on Opinio Juris have noted, this proposed ban raises issues about choice of law provisions in contracts and the meaning or application of international treaties. It also sharply contrasts with with the view United States Supreme Court Justice Sonia Sotomayer put forward during her confirmation hearings, that the court should be open to good ideas, where ever they are found (see the analysis of that principle here).

Faris' argument boils down to a proposition that by requiring courts to consider Sharia law, they might implement parts of it. That might be true, but only if the court considers that it is consistent with the purpose of the Victorian law it is interpreting. Once that condition is recognised, why shouldn't courts consider the decisions of international courts, including courts applying Sharia law, to decide whether there are any "good ideas" that are applicable in a Victorian context and appropriate in order to give effect to a principle like freedom of religion?

Legislation is worthless unless it has a measurable positive effect?

Bagaric's article, entitled "Rights crusade simply worthless", argues that the Charter has "counted for nothing". He cites the minimal impact on criminal law decisions, the delays plaguing Victorian courts and Hinch's challenge to suppression orders in relation to serious sex offenders as evidence that Victoria performs worse than other states in measuring human rights observance.

Let's pull that apart a little. First, his article fails to mention the declaration of inconsistent interpretation in Momcilovic. As impacts go, I'd say that is pretty significant, since the Charter was never meant to see courts substantially rewriting statues to conform to human rights, the way some courts like the UK and the US are required to do. Instead, it promotes a so-called dialogue model where the courts, as the institution at the coal-face of justice, consider whether the legislation Parliament has enacted lives up to its aspirations of complying with human rights principles. Now, Bagaric may contend that this process is inefficient, or doesn't produce a measurable benefit for society. But when measured against the options of 'do nothing and assume everything is okay' and 'allow courts free reign to implement human rights principles', the dialogue model seems a worthwhile middle ground.

Second, why should human rights have the greatest impact in the criminal law sphere? Sure, this is meant to be a criminal law blog, and personally, I'd like to see greater consideration given to human rights issues in the criminal law. But it's important to pay attention to the rights in sections 8 to 20, which aren't primarily about criminal law rights. And not all the rights in sections 21 to 27 are directly about criminal proceedings. Some concern treatment while detained while others direct Parliament not to enact retrospective criminal laws and enshrine the principle of double jeopardy. That we aren't seeing courts finding more breaches of these rights should be a good thing. For those concerned that the lack of activity in the criminal law field is mirrored in other areas of law, I suggest you have a look through the excellent decision summaries on the Human Rights Law Resource Centre.

Thirdly, why does Bagaric only measure impacts in terms of court decisions? It's a tempting thing for lawyers, especially academically minded lawyers, to look to the courts for information on outcomes. However, that overlooks the impact that policy changes have in terms of how our prisons are run, when police will apply for warrants or bring proceedings and numerous other day-to-day events where human rights considerations may colour how a judgment is exercised. I don't have evidence that the Charter has produced measurable impacts in those areas, and I'd like to know if there is evidence one way or the other before writing off the potential Charter impacts on the criminal law.

Fourthly, in terms of delays, I suspect his suggestion requiring courts to conduct trials within a year of charge is not well thought through. For one thing, he doesn't identify a remedy if a court fails to comply with this obligation. Is a person entitled to an acquital? Is the proceeding dismissed for want of prosecution? Is the proceeding permanently stayed without a conviction or acquittal? Why should the State lose the opportunity to enforce the criminal law if a defendant manages to run out the clock? Why should a defendant be forced on to trial before he is ready to meet an arbitrary time limit? We already have a similar arbitrary time limit in relation to sex trials, and as far as I can tell, it has made things more difficult for the prosecution, defendants and the courts, and has pushed out the waiting time for non-sex trials in the County Court significantly. To equalise the time limit across the board to something our curent system, for various reasons, cannot meet, doesn't seem like a step towards promoting rights. It certainly doesn't promote the rights of the victim of crime if the offender escapes conviction because the proceeding cannot continue beyond 12 months. The issue of court delays, regretably, is not likely to be amenable to a simple legislative solution.

Fifthly, the use of suppression orders seems to me to be a vexed one. At its basics, the issues seem to be as follows. Parliament knows that courts operate on a presumption of open justice. Parliament also knows that, in some cases, serious sex offenders may be exposed to the risk of vigilante violence and that protecting their identity may be necessary to promote rehabilitation and secure their safety. Courts, faced with the public outrage over sexual offences, seem to have developed a preference towards making suppression orders as an exercise in risk management. The issue of the proper balance courts should strike between open justice and protection of the personal safety of an offender is difficult, but not one that Parliament can fix from on high.

I agree with Bagaric that the Charter has, from the criminal lawyer's perspective, been a little disappointing in its impact. On one level, this is unsurprising. One of the main arguments levelled against human rights instruments in Australia is that the common law already protects basic rights, and so a Charter is redundant. But I suspect that another reason is that Victorian courts haven't been keen to embrace the 'human rights culture' that Hulls attempted to promote through the Charter. Charter arguments still seem to be treated exceptionally, as Wells (No 2) shows. Bagaric described this decision as a 'stunning rebuke to the Charter', before engaging in some hyperbole by comparing the Court of Appeal's approach to North Korea.

In my view, the Charter should have a meaningful impact in two ways. The first is in requiring rights-compliant behaviour by public authorities. There appears to be some evidence that public authorities are considering the human rights impact of their decisions. The second is as an Interpretation of Legislation Act that builds upon the general common law principle that Parliament is assumed not to intend to override fundamental rights unless a statutory provision is clearly expressed to do so.. However, like the introduction of provisions allowing courts to consider secondary material like second reading speeches, judges have approached the Charter with a degree of caution, rigorously enforcing notice requirements, discouraging litigants from raising Charter issue and seeking to limit reference to international authorities on the meaning of human rights (and the confusion over the commencement provisions is a matter Jeremy Gans covered frequently on Charterblog in the first year of the Charter's operation).

Time will tell whether there is to be a gradual shift of practice in the courts. Assuming that is, that the Charter doesn't move off the endangered species list and on to the extinct list.