However, I’ve since noticed that a different majority indicated it may be incompatible with Ch III of the Constitution for the proportionality test to be part of the interpretative process (French [36]; Heydon [439]; Crennan and Kiefel [574].

Thus, there is considerable uncertainty as to the validity and operation of s 7(2).

One possibility (apart from amending the Charter) is that the High Court could eventually rule that s 7(2) is invalid to the extent that it’s intended to be applied as part of the interpretative process.

1. Courts applying s 32(1) are limited to using a “process of construction as understood and ordinarily applied by courts, a process which is to be taken as accepted by the other arms of government in a system of representative democracy”. The Ghaidan “remedial” approach to interpretation was rejected. The relevant majority’s interpretation of s 32(1) was based primarily on the wording used in the section, without it being necessary to decide whether the Ghaidan approach is constitutionally permissible in Australia.

2. The s 36 declaration power is valid, but Ch III of the Constitution prevents such a power from being conferred on or exercised by any court exercising federal jurisdiction. This has major implications for the ongoing debate about whether Australia should introduce a national bill of rights. It is now beyond doubt that the “dialogue” model adopted in Victoria and the ACT is not a viable option at the national level.

3. In cases where a statute limits a right, s 7(2) has a role in the s 32(1) interpretative process (Gummow [168]; Hayne [280]; Heydon [427]–[428]; Bell [684]). It remains to be seen whether the involvement of the s 7(2) proportionality test in the interpretative process has any ramifications for the way that test is conducted, having regard to Ch III implications relating to the separation of powers.

The Charter is not dead; it is pining for the fjords, which of course are somewhere in Europe.

There’s now a majority who say that s109 doesn’t apply to inconsistencies from background regimes like s80 and sentencing laws. I assume that also applies to the general criminal law (elements, general defences and the like) but no-one actually said that.

There’s also now some judges who say that Dickson doesn’t cover procedural rules; federal rules that are nastier than state ones; and different maximum penalties, but not quite a majority in each case. On my reading, Vic’s possession law (where there is a state reverse onus but no federal one) is still in doubt. Also, on all approaches, the threat to NSW’s supply law remains. However, it is clearly possible that there’ll be further backtracks or shifts that will save those.

That leaves covers the field. I counted three judges (Heydon, Crennan, Kiefel) who think savings clauses are effective in indirect inconsistency cases. But three more require other indications of intent, which will leave room for doubt.

The danger will obviously diminish significantly once Hayne goes.