Kortel v Mirik & Mirik  VSC 103, brought down last Friday, is yet another Charter first: the first ever judgment exclusively about the Charter. That being said, it otherwise has all the hallmarks of cases to date: a criminal matter, a side issue, a procedural question; an interlocutory ruling; and, of course, a finding that the Charter doesn’t apply. Nevertheless, it touches on a host of fascinating issues (fascinating, at least, in these bare times before the anticipated flood of cases comes at last.)
The major issue – one for all the Charter geeks out there – is the mystery of Charter s. 6(2)(b):
6(2) This Charter applies to-
(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3;
The burning mystery here is the reference to Part 2, which is just the list of human rights. A basic feature of the Charter is that, in contrast to many human rights documents around the world, its list of rights isn’t self-enforcing. Rather, it just defines the human rights that other provisions – the interpretation mandate, the conduct mandate and the rest – pick up and enforce (to the limtied extent that they do.) So, why on earth does s6(2)(b) refer to anyone having ‘function’ under Part 2 and, to that ‘extent’, applying to ‘courts and tribunals’?
I’ve personally never really seen this as at all mysterious. Okkam’s razor solves the mystery right away: it’s a drafting error. Someone stuffed up. Actually, two people stuffed up: (1) whoever drafted the Consultation Committee’s draft, because that’s where this provision first appeared; (2) whoever’s job it was to check that there were no stuff-ups in the Committee’s draft. Maybe they were the same person.
The evidence for this theory is gold-standard: (a) The Consultation Comimttee said the following about its applications clause:
People and organisations providing important public services should not be left uncertain about whether they must protect fundamental human rights under the Charter; nor should the people receiving those services be left in doubt about whether or not their rights are protected. The Committee does not want to create ambiguities that the courts may need to resolve. This view is also consistent with the Statement of Intent, which expresses a clear preference for Parliament to have the last say in regard to rights protection. That goal can be achieved by setting out how far the Charter will extend with as much clarity as possible.
If s6(2)(b) was supposed to give the courts an all-new function, it doesn’t exactly keep this promise of clarity! (b) The Commitee’s lengthy discussion of the ‘role of the courts’ did not mention any mysterious extra functions under Part 2. Instead, it was limited to interpretation, declarations and remedies for breaches by public authorities. (The latter raises another mystery: why doesn’t 6(2)(b) give the courts functions under Division 4 of Part 3, especially s. 39. Again, Okkam’s razor easily yields the answer. It may well be that whoever drafted s6(2)(b) just ‘searched’ the draft for every mention of a court and tribunal. Section 39(1) (confusingly) speaks about litigants, not courts. Part 2, on the other hand, mentions courts and tribunals quite often.) (c) The Commitee was also at pains to say that courts shouldn’t be given any job that could involve them in developing the common law, lest the whole Charter collapse as unconstitutional. I don’t think much of this constitutional argument (although the High Court probably will.) But why would the Commitee then give the courts a vague new function that, it seems to me, will touch quite heavily on their common law role? (d) The second-reading speech says that “The processes for the parliamentary and court functions under the Bill are set out in Part 3.” Not Part 2. Right? (e) The EM to s6(2)(b) says:
Sub-clause (2) sets out the scope of application of the Charter to the various entities that the Charter applies to: the Parliament; courts and tribunals; and public authorities. The Charter confers functions on these bodies in Parts 2 and 3.
If 6(2)(b) contained a major, stand-alone addition to the Charter’s operation, shouldn’t the EM have highlighted that?
In short, what we have here is a clear drafting blunder. But, of course, courts can’t just ignore such blunders, at least not lightly. As King J correctly pointed out in R v Williams, 6(2)(b) does seem to give the courts an extra role, whether parliament meant that to happen or not. Nevertheless, it seems to me that there are good reasons to read s6(2)(b)’s reference to Part 2 as adding nothing to the law. First, the reading of s6(2)(b) that sees it as giving new functions to courts and tribunals begs the question of what those functions are. Second, if the Consultation Committee’s right, and there’s a constitutional problem with giving the courts a function that could impinge on the development of the common law, then there is an established principle of interpretation that says that it should not be read as doing that. Third, such a negative reading is at least plausible: in particular, you could argue that s6(2)(b) isn’t referring to functions under Part 2 separately from functions under Division 3 of Part 3, but in a composite way, i.e. a clumsy reference to the fact that courts, when they test whether legislation is compatible with human rights, will be applying the rights in Part 2, including the limitations provision in s7(2).
With all due respect to those who see s6(2)(b) as a major new power or duty for the courts (including, I note, Evans and Evans in their new text), I think the s6(2)(b) argument has no legs. Rather, its sole attraction is that it would circumvent some of the frustrating gaps in the Charter, notably the non-application of Charter s. 38(1) to courts acting judicially, a frustration I share. But there’s plenty of reasons not to fill the gap in this way. This isn’t 1803 and the Victorian Court of Appeal isn’t the U.S. Supreme Court. Building an all new major role for the courts out of the slim picking that is s6(2)(b) will be contentious, fraught and frustrating. It’ll distract and detract from the clearer provisions in Part 3. Worst of all, it will confirm the claims of those people who thought that merely passing a rights Charter would transform Victoria from a parliamentary democracy to a judicial elitocracy.
The 6(2)(b) issue in this case has fizzled, for reasons I’ll outline in another post. But it’s clear that a number of people are champing at the bit to raise the issue, including Bell J – who issued s35(1) notices of his own accord – and VHEORC, who hired big guns Ron Merkel and Kris Walker to argue the point in this case. It’ll come again soon enough. Here’s hoping it gets a knock-out blow.