This book examines the ACT Human Rights Act 2004 and the Victorian Charter of Human Rights and Responsibilities Act 2006. These two statutes are closely modelled on international bills and charters of rights but Australia’s unique legal framework makes them quite distinct. This book examines how these two “Australian Charters” have operated in their first decade. It explains their strengths and limits, and what lessons they can provide for other Australian jurisdictions.
The book comprises two thematic parts. The first half explains the architecture of the two Australian Charters. What makes them distinct? What is their scope? How do they operate? The second half examines how the Australian Charters have been used by particular groups in society, such as prisoners, people with disability and women. Others show how the Charters have affected important social issues, such as freedom of expression and religious observance.
The authors are a wide range of judges, practitioners and leading scholars. They bring a knowledge of the theory and practice of workings of the Australian Charters that is essential to everyone concerned with our rights.
Preface
About the Contributors
Table of Cases
Table of Statutes
PART 1 – ARCHITECTURE OF THE CHARTERS
1. Interpreting the Effect of Our Charters
Matthew Groves
2. The Distinctive Features of Australia’s Human Rights Charters
George Williams
3. The Scope and Application of the Charters
Janina Boughey
4. Taking Stock of the Audit Power
Penelope Mathew
5. Charter Remedies
The Hon Justice Mark Moshinsky
6. Using the Charter in Litigation
Emrys Nekvapil
PART 2 – SPECIFIC APPLICATIONS
7. Freedom of Expression
Colin Campbell
8. Religious Freedom under the Victorian Charter of Rights
Nicholas Aroney, Joel Harrison and Paul Babie
9. The Approach of the Victorian Charter to Women’s Rights
Ronli Sifris
10. Charters and Disability
Rosemary Kayess and Belinda Smith
11. The Charter of Law and Order
Jeremy Gans
12. The Second Charters of Prisoners’ Rights
Matthew Groves
13. Privacy Rights and Charter Rights
Moira Paterson
Index
The Victorian Charter of Human Rights
and Responsibilities Act and the ACT
Human Rights Act have been in operation
for a decade. This book provides a timely reflection on the successes and failures
of these human rights charters. The contributors are mainly academics, who provide analysis of the charters from the perspectives of women’s rights, disability rights, privacy, freedom of expression and religious freedom. The perspective of a judge (Federal Court Justice Mark Moshinsky) and a legal practitioner (Emrys Nekvapil) are also valuable contributions. The focus is the Victorian Charter. Problematic provisions, such as the remedies provision (s38), are thoroughly discussed. Issues arising from the High Court’s split decision in Momcilovic v The Queen [2011] HCA 34 are also well covered. These issues may be resolved by the creation of an independent cause of action for breach of Charter rights, which was recommended by an independent review of the Victorian Charter in 2015.
The chapter on religious freedom is notable in its criticism of the Victorian Equal Opportunity and Human Rights Commission for its “exclusive focus” on equality, as opposed to other rights (p132).
Bill Swannie, InPrint, Law Institute Journal Victoria, March 2018
The framers of the Australian Constitution drew on many aspects of the American constitution in framing our own. A notable exception, of course, was the decision not to adopt some form of a bill of rights as part of our Constitution. Since Federation, the need for the recognition and protection of certain inalienable rights has however won a wide public acceptance. …
The collection of essays, Australian Charters of Rights a Decade On, by distinguished scholars and practitioners in the fields of constitutional, international human rights, and discrimination law, edited by Matthew Groves and Collin Campbell, offers legal practitioners, policy-makers and rights advocates a rich and multi-faceted analysis of the achievements, and shortcomings, of the ACT and Victoria initiatives. …
The collection of essays is a significant contribution to an important area of discourse in contemporary Australian society. Read full review…
Charles Wilson, Hearsay, September 2017, 80
Each chapter is authored by a different professional, including judges, barristers and academics. This is one of the most pleasing aspects of the text as it offers readers an array of information due to the differing expertise and perspectives of each author. …
The text is an informative resource that many would find beneficial. Those with only limited understanding will find the background information useful, equally readers with some understanding of the area will find the latter chapters assist in extending their knowledge of the Charters. Each chapter is divided into subsections making it easy for the reader to follow, further many chapters contain sections of the Charters transcribed and direct quotes from key cases. While the authors do not shy away from expressing their personal views, this does not mean they fail to cover both positive and negative aspects of the Charters, allowing the reader to come to their own conclusion. Australian Charters of Rights A Decade On succeeds in making an intricate and otherwise confusing part of the law accessible to readers.
Lydia Devereaux, Qld Lawyer, 2017
