A new problem Charter section?

Justice Bongiorno’s discussion of the Charter in the course of his ruling about remand conditions in Melbourne’s terrorism trial didn’t just involve its transitional provisions. Indeed, the judge nominated an alternative provision as highly problematic:

[A]ny attempt at reliance on the Charter would necessarily require compliance with s 35(1)(a), which concerns the giving of notice to the Attorney-General and the Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter. Compliance with this provision would, of necessity, involve delay – perhaps considerable delay – which in the context of an application such as this would be at least inconvenient and perhaps even intolerable.

Section 35 of the Charter contains no severance provision, nor does it contain any urgency exception such as are found in s 78B of the Judiciary Act 1903 (C’th). These are major impediments to the smooth operation of the Charter which need the urgent attention of the Legislature. The section needs to preserve a residual discretion in the judge to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason. This is, for obvious reasons, particularly important in criminal proceedings. Without such a power there is a real danger that the notice provisions of the Charter will be used to delay or even disrupt the orderly conduct of criminal trials.

Wow! Is the Charter unworkable? Well, only if you read Charter s.35 in a quite bizarre way.

What the section says is this:

35. (1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if-

(a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter…

Obviously, s.35(1)(a) would apply here if Bongiorno J  tried to rule on Charter ss. 22 or 25 or 38. But doesn’t it also apply if he ruled – as he seemed to – on Charter s. 49. Or, for that matter, Charter s. 35(1)(a)?

But, what Bongiorno J’s argument ignores is that Charter s. 35(1)(a) doesn’t state any consequences if notice isn’t given. Notably, Charter s. 35(1)(a) doesn’t have the much clearer wording of Charter s. 36:

(4) The Supreme Court must not make a declaration of inconsistent interpretation unless the Court is satisfied that-

(a) notice in the prescribed form has been given to the Attorney-General and the Commission under subsection (3); and
(b) a reasonable opportunity has been given to the Attorney-General and the Commission to intervene in the proceeding or to make submissions in respect of the proposed declaration of inconsistent interpretation.  

or of s. 78B of the Judicary Act:

(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.  

Surely the omission of this wording – not to mention the unfortunate consequences that Bongiorno J outlines – is an indication that Charter s. 35(1)(a) doesn’t preclude rulings on Charter questions – at least in urgent interlocutory matters – without the notice requirement being complied with? This seems like yet another example of Bongiorno J’s silly approach that treats every wrong as demanding a (drastic) remedy. I’m all for clarifying Charter s. 35, but most of the problem here is the judge, not the section.

One other point: surely, if Bongiorno J is correct, then his own ruling in Gray v DPP was in breach of Charter s. 35. It’s true that notice wasn’t required to the Attorney-General due to s. 35(2)(a) as the State (the Victorian DPP) was a party to that case (unlike this one, where the DPP is the Cth.) But the VEOHRC wasn’t a party, so the Commission still had to be notified. Oops. Better re-arrest Mr Gray.

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