The messy origins of Charter s. 39(1)

It’s time to tackle one of the Charter’s most difficult provisions:

39. Legal proceedings

(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

Dealing with this nightmare will take several posts.

I’ll start with the section’s origins, which are in the strangely named ‘Statement of Intent‘, which Rob Hulls issued in 2005 at the commencement of the ‘community consultation’ that led to the Charter.

Hulls stated:

The Government’s approach is to address human rights issues through mechanisms that promote dialogue, education, discussion and good practice rather than litigation… Consistent with its focus on dispute prevention, the Government does not wish to create new individual causes of action based on human rights breaches.

The Community Consultation Committee‘s ‘consulting’ revealed that the ‘community’ didn’t much like the sound of this. Would the Charter be a toothless tiger? Isn’t that contrary to Article 2.3 of the ICCPR, which requires Australia to provide ‘effective remedies’ to people whose rights are breached?

However, the Committee’s discussion of remedies for breaches of Charter rights pointed out that the Charter would have ‘teeth’ because of the interpretation mandate and the Supreme Court’s power to make a declaration of inconsistent interpretation. Moreover:

Remedies that now exist under Victorian law should also be applied to work with the Charter. The best way to achieve this is to include an obligation on public authorities to observe Charter rights. This is consistent with the express terms of the United Kingdom Human Rights Act 1998 and the New Zealand Bill of Rights Act 1990 and what can be implied from the Australian Capital Territory Human Rights Act 2004.

Where this obligation is breached, the courts should have a limited form of review of the decision-making of government, like that already found under Victorian law. This is consistent with the Statement of Intent because it works within existing remedies. It also makes sense to people who believe that ‘where there is a right, there must be a remedy’.

The Committee’s point- and it’s a good one – is that s38(1), by deeming certain acts of public authorities to be ‘unlawful’, automatically brought all of the regular law’s remedies for unlawfulness to bear. In other words, s38(1) works in exactly the same way as any statutory provision that says something is unlawful. If anyone breaches that provision, then someone with standing can launch proceedings against them and seek a remedy, such as a prerogative writ, or judicial review, or some other more specialised remedy. Also, theymight be able to get a ‘collateral’ remedy in the course of other proceedings, if the conditions for getting that remedy are satisfied by the unlawfulness of whatever the public authority did. All of this is just straightforward administrative law. The crucial point: there’s no need for an express remedies provision. Charter s. 38(1) and the common law will do all the work.

Alas,  the rest of the Committee’s discussion muddied this straightforward point. Further down the report, the following recommendation appeared, apropos of nothing:


The Charter should not disturb any of the remedies that a person may be entitled to under the existing law.

Apart from the remedy of damages (discussed much later in the report), no-one was arguing that the Charter should limit existing remedies, so why was this negative recommendation needed? It seems like the Committee was using recommendations as a way of summarising its legal discussion. And not especially well. What does ‘should not disturb’ mean? And ‘may be’? And ‘entitled’? Given that the preceding paragraphs were all about how the interpretation mandate might yield defensive remedies (by narrowing the coercive powers of some bodies), the recommendation could even be read as designed to counter that very effect. Adding to the confusion was the next recommendation, which was in fact a defence to the conduct mandate (and eventually became Charter s. 38(2)).

It gets worse. After an excursion into non-judicial remedies (like the Ombudsman and conciliation), there was a discussion entitled ‘judicial review’. It commenced with the sensible (but repetitive) proposition that administrative law provides judicial review as a pre-existing remedy for unlawful decision-making, but then wandered into a new analysis, not of remedies, but rather of a new substantive requirement: that public authorities should not only have to act compatibly with human rights but should also to consider them (allowing them to be pinged, admin-law-style, for failing to take account of a relevant consideration.) Weirdly, this new substantive (if not particularly substantial) requirement wasn’t the subject of a recommendation. Instead, the discussion ended with the following recommendation about remedies:


A person who claims that a public authority has acted unlawfully by acting in a way that is incompatible with the Charter should be able to:

  • apply to a court for judicial review of the decision of the public authority to act in the way it did; and
  • apply to a court for a declaration that the act of the public authority was unlawful,

where the existing requirements for those proceedings are satisfied.

Given that the Committee had already held that unlawfulness automatically triggers regular remedies (including judicial review and a declaration) and had already recommended that existing remedies be left untouched, what was the point of this specific recommendation? Isn’t it really just an example of what the Committee’s earlier discussion had already said was implicit in Charter s. 38(1)? Again, the Committee seemed to be treating its ‘recommendations’ as opportunities to summarise legal analysis, rather than to propose anything new. Alas, this one was intended to be enacted in statutory form: ‘It would be better to set out clearly in the Charter that those two avenues are available than to allow it to develop in an ad hoc way over time.’ Why? And why do I get the feeling I’m reading an undergraduate research paper done the night before it was due?

(Yes, I know that’s harsh. I, like many people, have enormous respect for George Williams, Pamela Tate and the rest. But this chapter of the report is quite weak. Part of the blame rests on the ‘community consultation’ format, which left the committee obliged to set out countless worthy quotes and basically imply that it supported all of them, while minimising the impression that it was ultimately making its own recommendations, or trying to justify the statement of intent’s prejudgments. Missing in all of this is an analytical ‘the committee’s view’ section, which explained why a particular recommendation made the cut. As it reads, the recommendations just emerge as non sequiturs at the end of a list of quotes.)

Luckily, the Committee’s discussion of general remedies stopped there. But the damage was done. The Committee’s draft Charter contained the following provision:

Legal proceedings

(1) If an act or decision of a public authority is made unlawful by this Charter, a person aggrieved by that act or decision may seek any relief or remedy, including—

(a) judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence

where that relief or remedy would have been available had the act or decision been unlawful apart from this Charter.

This, of course, is legislative version of the Committee’s legal analysis in recommendation 30, curiously extended to include non-administrative collateral remedies for unlawfulness, such as stays and exclusion of evidence; and also with the unexplained title ‘legal proceedings’ and the new words ‘aggrieved’, ‘may seek’ and ‘associated’. If all this provision did was declare the legal corollary of the conduct mandate, then there’d be less harm done. But people who interpret legislation typically assume that new provisions add something to the previous analysis (in the absence of clear language stating otherwise.) The obvious, but perhaps unintended – or at least not thought out- corollary of this draft provision is that remedies that aren’t covered by it are barred as Charter remedies.

If only the saga had ended there, things wouldn’t be so bad. But, alas, some doofus in the Department of Justice decided to ‘improve’ upon the Committee’s unnecessary draft provision. By the time the Charter was before the Victorian Parliament, the Committee’s draft was replaced by a much clumsier and much more general provision, now s39(1). Here it is again:

39 (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

This rewrite reverses the order of the draft provision, dealing with the non-Charter hypothetical before the Charter remedy, in my view making it harder to read. Much more troublingly, it also replaces the fairly plain language of the Committee’s draft as follows:

  • replacing ‘apart from’ with ‘otherwise than because of’
  • replacing ‘would have been available’ with a second instance of ‘may seek’
  • replacing ‘had the act or decision been unlawful’ with ‘in respect of an act or decision… on the ground that the act or decision was unlawful’
  • adding the words ‘on a ground of’ and ‘arising because of’ to the Charter remedy clause

None of these changes are good ones or even neutral ones. They aren’t plain language. They’re imprecise. They’re ambiguous. They are a world of trouble. And, on top of that, the examples in the Committee’s draft have vanished, meaning that s. 39(1) is now a general remedies provision, contrary to the specific provision that the Committee proposed to avoid the need to determine the available remedies on an ‘ad hoc’ basis.

Meanwhile, the Committee’s recommendations 27 and 30 (as modified in the Committee’s draft) were somehow combined to yield this further sub-section:

39 (2) This section does not affect any right that a person has, otherwise than because of this Charter, to seek any relief or remedy in respect of an act or decision of a public authority, including a right-

(a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and

(b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence.

Crucially, this sub-section’s operation is contingent on the words ‘otherwise than because of this Charter’, which means that Charter s. 39(2) isn’t about remedies for Charter breaches, but remedies for non-Charter breaches. And, to be clear, that’s actually non-Charter remedies for non-Charter breaches! Which, we are now told, aren’t affected by the Charter. Whew! (But what about non-Charter remedies for non-Charter remedies that aren’t mentioned in s. 39(2)? Are they ‘affected’?)

To recap, a completely sensible legal analysis about why there’s no need at all for a remedies provision, unnecessarily restated in the form of recommendations about general and explicit specific non-Charter remedies for breaches of the Charter, somehow turned into a vaguely worded and complex general provision for remedies for breaches of the Charter and a explicit specific provision for remedies for breaches of other laws, both bristling with implications about what they didn’t cover.

In effect, Charter s. 38(1)’s ‘explanatory memorandum’ – and an overly worked over and muddled one at that  – ended up getting enacted as Charter ss. 39(1) and 39(2)! And these, of course, had their own explanatory memorandum. More on that in a later post.

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