On top of his concerns about the Charter’s transitional and notice provisions, Bongiorno J gave one last reason for staying clear of the Charter in today’s ruling about remand conditions for terrorism defendants:
any attempt to apply the Charter to a trial in federal jurisdiction, as this trial is, may well raise questions which require the issue of notices to all State Attorneys-General and the Federal Attorney-General pursuant to s 78B of the Judiciary Act 1903 (C’th) – another source of potential delay to the trial.
Justice Bongiorno’s procedural concern here can’t be about the immediate question of remand provisions because, as the judge himself noted when discussing Charter s. 35(1)(a), there’s an exception in s78B for ‘the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.’ Rather, the concern will have to be about further legal delays down the track.
But the mystery is what ‘matter arising under the Constitution or involving its interpretation’ that Bongiorno J had in mind. The defendants weren’t seeking a declaration of inconsistent interpretation, so why is federal jurisdiction a problem? If the Charter applies – presumably to Corrections Victoria – then it’s just another state procedural law that applies in a federal criminal proceeding. No-one sends out s78B notices when a Victorian judge applies the Victorian Crimes Act 1958 or the Evidence Act 1958 or the Interpretation of Legislation Act 1981 or whatever, so why is the Charter – just another ordinary statute, and a weak one at that – inherently problematic?
I guess one possibility is s. 120 of the Commonwealth Constitution:
Every State shall make provisions for the detention in its prisons of persons accused or convicted of offences against the laws of the Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effects to this provision.
But what is the issue with the Charter? It may be that a Commonwealth statute is at odds with a Victorian judge making orders that touch on conditions for terrorism remandees, but, if that’s true, then what Bongiorno J did would already raise issues under s. 109 of the Constitution, so s. 78B would still have to be complied with.
I fear that what is going on here is the usual wooly thinking that surrounds the application of state laws to federal criminal trials, where non-criminal lawyers (and, perhaps, former prosecutors working exclusively in state matters) always seem surprised to learn that such matters are governed, for the most part, by state laws. It is such poor legal thinking that causes s. 78B problems, not the Charter.