Declarations: Anti-matter or just dark matter?

A slight lightening of a constitutional cloud over the Charter (and its Canberra cousin.) The cloud concerns the possibility that the Charter’s declaration power – allowing a court to declare that a Victorian statute is inconsistent with human rights, kickstarting the much vaunted rights dialogue – isn’t a ‘matter’, which means it can’t be part of federal judicial power. (Don’t know what ‘federal judicial power’ is? Well, that’d be my fault, according to High Court Justice Bill Gummow, who thinks that law schools should teach ludicruously complex (and simply ludicruous) constitutional technicalities to all law students, just so he can banter about them with his lucky associates from the get-go.)

So, whassamatter? In 1921, the Commonwealth Parliament, sick of trying to guess in advance how the High Court will interpret the Constitution, told the Court to rule on the constitutionality of legislation before anyone applied it. The horrified Court frantically leafed through the Constitution and noticed this legalese buried in Chapter 3:

76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter— (i.) Arising under this Constitution, or involving its interpretation: (ii.) Arising under any laws made by the Parliament: (iii.) Of Admiralty and maritime jurisdiction: (iv.) Relating to the same subject-matter claimed under the laws of different States.

The judges seized on the word ‘matter’ and held that it meant that the Court was forbidden on ruling on things that didn’t legally matter. Otherwise,the delicate separation of powers will collapse (just like in Canada, where its Supreme Court routinely gives advisory opinions and wild dogs roam the streets.)

Why does this matter? Well, Charter declarations have no legal effect (or, at least, very little.) That means declarations are the opposite of a ‘matter’ and, if federal courts so much as touch them, the universe will blow up, constitutionally speaking. This is a problem for state courts (who are the main courts who’ll ever apply the Charter, a state law) because they can sporadically become federal (notably, when they’re trying federal criminal charges, but there are other vaguer scenarios.) The result is that Charter declarations can’t be made in those proceedings. (Declarations by purely state courts are OK, unless the High Court lays Kable on them, i.e. finds that Charter declarations are so horrific that any contact with them will render state courts un-federalisable . But if the Court’s perfectly happy for the NSW parliament to retrospectively use sentencing judges’ extra-legal remarks as a way of identifying super bad prisoners so that they can be denied parole, surely it won’t have a problem with the Victorian parliament permitting its courts to identify bad laws so that parliament can take a second look. Surely.)

But maybe there’s some potential relief even for federal proceedings in this week’s High Court judgment upholding the constitutionality of the Takeovers Panel. It’s not the ruling itself that matters, but rather its context. The case was an appeal from a federal court judgment, but the parties had since settled their dispute and no longer cared less about the Takeovers Panel. At the request of the Commonwealth Attorney-General, an intervenor in the case below who didn’t like the result there, the High Court chose to rule on question anyway; it even allowed the Attorney to fund the other side’s lawyers. Justice Kirby pointed out an his concurring reasons in this week’s judgment that the Court’s willingness to decide a case even though nothing turns on the outcome must mean that previous understandings of what a ‘matter’ is have undergone a murky expansion. To press home the significance, he footnoted some articles that have worried about the constitutional problems surrounding Charter declarations.

Charter fans – and financial beneficiaries of the Charter like me – should hold the champagne for now. What Kirby J thinks isn’t what the rest of the Court thinks; as everyone knows, it’s usually the opposite. For a recent comprehensive review of just some of the relevant, mind-numbing law on federal judicial power, see this paper.

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