s78B v the Charter

At yesterday’s launch of Evans & Evans’s new charter book, Chris Maxwell (President of the Victoria Court of Appeal) briefly discussed the Underbelly case, including how the Charter issues fizzled. He referred to one issue that wasn’t mentioned in either the news coverage or the judgment: that the Court of Appeal made it clear (on the day of the hearing) that, if Channel Nine wished to rely on the Charter, then s78B notices would have to be sent out and the case held over for a few weeks. Given that Nine’s entire objective in that appeal was to squeeze in some of the early (and totally uncontroversial) episodes of Underbelly in before Evangeline Goussis’s trial (weirdly, we can name him now!), this of course forced Nine to drop the Charter argument completely. No Charter for you!

And here I was thinking that I couldn’t be more appalled by the Court of Appeal’s behaviour in that case.

So, what was going on here (legally?) Section 78B (of the Judiciary Act 1903) is the Commonwealth Constitution’s equivalent to Charter s. 34. It requires a notice to be sent to every Australian Attorney-General (all nine of them) whenever any court proceeding ‘involves a matter arising under the Constitution or its interpretation’. The point of this section is to ensure that any court decision about the Constitution is informed by the viewpoints and legal skills of the nation’s Attorneys-General.  Such decisions aren’t all that common and s78B helps to keep it that way, by making it hard for any litigant to slip in a constitutional argument into any litigation. Doing so brings costs, delay and, if the argument has any merit (which isn’t all that often), a bunch of senior counsel into the courtroom, who may well ask for the entire case to be shipped off to Canberra. Most litigants, when asked to issue s78B notices, respond (as Channel Nine did) by narrowing their legal arguments to avoid the constitutional issue.

But s78B can also be abused. Here’s how to do it: when a person makes an argument against you that you don’t like, tell the court that you think there’s a constitutional problem with that argument. If you’re lucky, the court will panic and insist on s78B notices. The result: your opponent will drop the argument to avoid the delay, cost and complexity. A variation is if a person makes an argument and the court doesn’t like it. The court can then insist that there’s a constitutional problem and pull a s78B, prompting that person to drop the point. This sort of outcome is only acceptable if: (a) the constitutional problem is a genuine one; and (b) s78B is applied sensibly. Neither of these conditions seem to be satisfied here.

First, the constitutional issue. Channel Nine raised (for better or worse) the lingering issue of s6(2)(b), presumably in a fruitless attempt to convince the Court of Appeal that it has a broader function than just protecting the courts’ traditional monopoly on information about legal proceedings. Now, while I don’t think much of the s6(2)(b) argument’s merits, others (notably the Charter’s Consultation Committee, including presumably its legal adviser, Solicitor-General Pamela Tate) think that there’s a constitutional problem with state legislation giving courts a human rights function. That’s because the courts are the domain of the common law and the High Court held in the 1990s that the only body that can ‘develop’ the common law is… the High Court. (Don’t ask me to explain why the High Court held that. Like so much else of the High Court’s constitutional jurisprudence about judicial power, it somehow involves reading Chapter Three of the Constitution while squinting really hard.) As I’ve argued elsewhere, I think this constitutional argument is dodgy, both on its merits (the High Court has never ruled about what happens if a parliament deliberately tries to change how the common law is developed) and its application (the courts’ functions involve a hell of a lot of other things than developing the common law, including applying it, interpreting statutes and developing practices and procedures. Arguably, determining whether to suppress a TV show is mostly, if not exclusively, about these various functions.) (Alas, that doesn’t mean that the High Court won’t lap this constitutional argument up.)

But there’s no need whatsoever to resolve this battle between the dodgy s6(2)(b) argument and the bodgy constitutional argument. That’s because it is clear from the background material to the Charter that its drafters (including the foolish drafter of s6(2)(b)) had no intention whatsoever of giving the courts any human rights function that would impinge on the High Court’s common law monopoly. It is that intention that is vital in interpreting the effect of s6(2)(b). It doesn’t matter whether the constitutional argument is meritorious or not. All that matters is that the Charter’s founders (unfortunately) thought that it was. As a result, the constitutional argument doesn’t have to be resolved. Interpreting s6(2)(b) is just a straightforward matter of interpreting a Victorian statute. There’s no need to summon any of Australia’s non-Victorian Attorneys-General, because they couldn’t possibly care less about s6(2)(b). There’d only be a problem if Channel Nine was insisting that the drafters’ intentions didn’t matter, but that’d be a stupid argument indeed.

Anyway, there’s also a procedural reason why the Court of Appeal’s use of s78B was wrong. Section 78B(5) says:

(5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

Dudes! How on earth was Channel Nine’s application anything other than a matter that related to urgent relief of an interlocutory nature? The suppression order against Underbelly is, precisely, ‘urgent relief of an interlocutory nature’. This is an appeal from that order. So, Channel Nine’s appeal satisfies the main condition of s78B(5).

I fear that what the Court of Appeal actually did was to decide that resolving Channel Nine’s Charter argument ‘without delay’ wasn’t ‘necessary in the interests of justice’. Alas, the Court’s reasons for that decision aren’t publicly available. But let me guess: this whole matter is all naughty Channel Nine’s fault because it didn’t come to the court in the first place begging for a suppression order and didn’t hand over its property without a subpoena and their TV show is just entertainment and they just want to make money. The only saving grace in this procedural unfairness is that it’s obvious that the Court would never have changed its mind because of the Charter anyway. Courts already respect everyone’s human rights, you see.

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