In a previous post, I discussed the origins of section 39(1), the Charter’s ‘remedies’ provision. Here, I’ll continue that discussion by asking what effect s. 39(1) has (holding off, for now, the question of when precisely it has that effect.) Advanced warning: my conclusion is that the effect of s. 39(1) is extremely uncertain.
Section 39(1) says:
(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.
The literal effect of the section can be identified as follows:
(1) If [a particular condition about a person and a relief or remedy is satisfied], that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
So, s39(1) says that certain people ‘may seek’ certain reliefs/remedies on a ground of a certain type of ‘unlawfulness’. Alas, the section does not mean what it says.
Section 39(1) reads as if it’s permitting something. But that ‘something’ is something that has never needed permission: seeking a relief or remedy. Everyone (except for vexatious litigants, and maybe people who are civilly dead) can ‘seek’ any relief or remedy they happen to want. Whether they get it is another matter. Section 39(1) says nothing at all about the latter issue and, indeed, doesn’t even mention who the person may seek a remedy from. The parliament? The Attorney-General? The Minister? The ombudsman? God? The EM doesn’t say anything either.
The only hint is in the title to s39(1): ‘legal proceedings’, although those proceedings are neither mentioned in the section nor defined in the Charter. We’re somehow all meant to know that ‘reliefs’ and ‘remedies’ (also undefined) come from the courts and tribunals, although (as I pointed out in another post), the Charter’s ‘application’ section (s6) neglects to provide that s39 gives functions to courts and tribunals. (Section 6(3)(a) probably fills that gap, though that requires a finding that s39(1) ‘confers’ a function of granting reliefs or remedies on courts and tribunals.) As for whether or how the courts or tribunals will respond when someone (with the ‘permission’ of s39(1) or otherwise) seeks a relief or remedy from them is anyone’s guess.
Moreover, even if you see s39(1) as conferring, not just a permission to seek a relief or remedy, but a right to actually get that remedy (at least in some circumstances), the entitlement it gives is specifically to a relief or remedy ‘on a ground of unlawfulness’ (of a certain type.) As previously discussed, the ability to seek and, indeed, get at least some sorts of reliefs or remedies for unlawfulness is taken as a given in our legal system, via both positive remedies (chiefly of the administrative law variety) and collateral remedies (of which there are many.) Again, s39(1) appears to say nothing new. Given its origins, that isn’t surprising. However, courts interpreting the Charter are naturally going to ask why s39(1) exists.
The most obvious guess would be that s39(1) extends people’s rights to seek (or maybe get) reliefs or remedies beyond the existing remedies for unlawfulness. But that explanation can be dismissed right away. The EM says:
This clause does not create any new or independent right to relief or a remedy if there is nothing more than a breach of a right protected under Part 2.
This is, of course, what Rob Hulls said in his statement of intent (although he left out the ‘or’, leaving open the possibility that only remedies that were both new and independent were verbotten.) And, it seems to rule out any expansion beyond the current law on remedies for unlawfulness (although I suppose you could say that such an expansion is possible if there’s something ‘more’ than a breach of a right. But surely the EM would specify what that something more was?)
The next most obvious guess is that s39(1) is designed to expressly restate the existing law on remedies for unlawfulness. This is consistent with my reading of the origins of s39(1). It’s also consistent with the EM, which says:
Clause 39 sets out guidance regarding legal proceedings that may be available in relation to an unlawful act or decision of a public authority.
(Not that it sets out well-written or helpful guidance, of course.) On this reading, s39(1) can just be ignored (by people in the know about the law, like lawyers and the courts), although everyone else will need to rely on it, for what it’s worth.
Alas, there are contrary indications that suggest that s39(1) does have an effect, albeit not one that involves wider entitlements than the existing law. The EM goes on to say:
In particular, the clause does not confer any entitlement to an award of damages arising from nothing more than a breach of a right protected under Part 2, nor are any damages to be awarded referable to the breach of a right protected under Part 2. The unavailability of damages is further reinforced by sub- clause (3).
Now, this seems to be inconsistent with the current law, which is at least open to the award of damages for some unlawfulness in some circumstances. I’m not sure whether or not there are any torts that are available for just general unlawfulness, but there are surely some that are at least referable to someone’s general unlawfulness. Breach of statutory duty? Assault? Moreover, there’s also s39(2), which provides that s39 ‘does not affect’ certain ‘other’ rights to seek a relief or remedy, implying that it also does affect some rights. Its EM says that it ‘confirms that the Charter does not displace‘ those rights, which seems to assume that s39(1) – it doesn’t seem to be referring to s39(3) or (4) – does displace some rights.
And that’s the alternative and widely assumed meaning of s39(1): that it is actually a limiting provision, restricting when some reliefs or remedies relating to the Charter can be sought. That at least explains why s39(1) exists. It is also consistent with Hulls’s desire that litigation should be a marginalised option under the Charter. However, it confirms that the drafting of s39(1) is horrid. What it really should say is something like this:
Unless [a particular condition about a person and a relief or remedy is satisfied], no person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
If I’m right – and most Charter commentators take this view -, then why, oh why, doesn’t s39(1) just say this? Why do people draft things as if they are giving permission when they are actually restricting something? (It’s not only the Charter that does this.) Are they against saying what they mean? Are they trying to hide what is really happening? Were they embarassed about removing entitlements? Are they just thick? I don’t get it.
The problem with expressing a restriction as if it’s a permission goes beyond merely being misleading to readers who aren’t in the know. The greater problem is that it leaves the boundaries of the section ambiguous, as it’s not clear whether a particular matter delineates the scope of the restriction or a condition for when it is lifted. The resulting ambiguities are:
- Person: Does s39(1) only limit when a ‘person’ can seek a relief or remedy, or does it bar all reliefs or remedies unless a ‘person’ is seeking it? (e.g. can VEOHRC or a corporation seek a Charter remedy or not?)
- Seek: Does s39(1) only regulate attempts to ‘seek’ a remedy, or does it bar all reliefs or remedies unless they are sought? (e.g. can a court give a Charter remedy of its own motion or not?)
- Relief/remedy: Does s39(1) only limit ‘reliefs’ and ‘remedies’, or does it bar a court from doing anything other than giving a relief or remedy? (e.g. can a court discipline a public authority for a Charter breach, even if that discipline doesn’t relieve or remedy the breach?)
- Ground of unlawfulness: Does s39(1) only limit reliefs or remedies on the ‘ground of unlawfulness’, or does it bar a court from giving any remedy other than a remedy on the ground of unlawfulness? (e.g. can a court give a remedy like bail, which is not triggered by unlawfulness?)
- Arising out of this Charter: It’s clear that the section is exclusively concerned with effects of the Charter (ss 39(2) and 39(4) confirm that), but there’s a good argument that it should be read considerably more narrowly. Recall that the EM says that s39(1) provides ‘guidance regarding legal proceedings that may be available in relation to an unlawful act or decision of a public authority.’ This seems to be a reference to s38(1). So, does s39(1) only regulate remedies for breaches of s38(1), or does it prevent the court from giving any remedies other than those that arise out of a breach of s38(1)? (e.g. can a court give remedies that emerge excluisvely from the application of the interpretation mandate to a remedies statute, or arise from the mysterious effect of s6(2)(b)?) But if s39(1) was limited to the consequences of s38(1) then why on earth wouldn’t it just say that?
So, the only things that are clear is that s39(1)’s restriction doesn’t cover non-Charter matters and that at least one way of avoiding its restriction is to satisfy the particular condition it sets out about people and reliefs/remedies (a condition that I’ll examine in a later post.)
In other words, s39(1) could mean either of these extremes:
Least restrictive meaning: A court or tribunal must not give a relief or remedy sought by a person on a ground of unlawfulness arising out of s38(1) unless [a particular condition about that person and remedy is satisfied]
Most restrictive meaning: A court or tribunal must not do anything as a result of this Charter unless a person seeks a relief or remedy on a ground of unlawfulness arising out of 38(1) and [a particular condition about that person and remedy is satisfied]
or anything between them. There is absolutely no way to tell what the actual effect of s39(1) is within these bounds. None. The murky origins of s39(1) provide no guidance. The poor drafting of s39(1) cannot resolve the issue. It will have to be resolved by courts, in a piecemeal fashion, including repeated visits to the Court of Appeal and – god forbid – the High Court, all searching – in vain, I fear – for a purpose to bring reason to s39(1)’s hopelessly unclear phrasing and terms.
So much for clearly delimiting the limits of litigation under the Charter and avoiding a lawyers’ picnic. Section 39(1) looks to me like it will prove to be the Charter’s s92.