Transition pains

I’m a big critic of Charter s. 49(2), the Charter’s main transitional provision:

This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

My main gripe is that I think this provision is far broader than is necessary and as subtle as the sledgehammer-to-crack-a-nut legislation that the Charter is supposed to prevent. However, I also think that it’s a highly ambiguous provision. What does ‘affect’ mean? What does ‘proceedings’ mean? What does ‘commenced or concluded’ mean? (And some judges can’t even work out what ‘before the commencement of Part 2’ means!) In this regard, s49(2) is by no means alone.

The Court of Appeal last week did its best to grapple with another transitional provision (in the Crimes Act 1958), one of the thousand or so that are scattered throughout Victorian legislation:

607 The amendments made to this Act by section 3 of the Crimes (Sexual Offences)
(Further Amendment) Act 2006
apply to any proceeding that commences on or
after the commencement of that section, irrespective of when the offence to
which the proceeding relates is alleged to have been committed.

This provision governs when the new rules on jury directions in rape trials (overturning a decade’s worth of shocking High Court judgments) kick in. The Court of Appeal unanimously held that the lower courts have been misapplying the rule. ‘[C]ommences’ means the filing of a presentment in the Supreme Court, not to filing of the original charges. This means that the new rules apply to all rape trials that reached the County and Supreme Courts since the amendment act commenced, rather than only to rape prosecutions where charges were laid after that date.

Justice King in R v Williams [2007] VSC 2 held that s49(2), as it applies to criminal proceedings, kicks in when charges are laid There’s no reason to think that the Court of Appeal’s new decision overturns this precedent. Rather, what it underlines is that the meaning of transitional provisions depends upon their particular context. The Court held that the fact that the amending act was all about jury directions – which are only given in the County and Supreme Courts – meant that it made no sense for the transitional moment to occur at the time of charging, which only happens in the Magistrates Court. The Charter, of course, affects lots of different rules, including lots of things that might matter in the lower courts. (That being said, the Court of Appeal’s analysis does bear out my complaint that the Charter’s one-size-fits-all rule is quite inappropriate.)

The Court of Appeal also pointed out the enormous – and scandalous – variation in transitional provision language in Victoria:

The language of the transitional provisions varies a good deal. Sometimes amendments apply to ‘any trial that commences on or after the commencement of’ a relevant provision, ‘irrespective of when the offence to which the trial relates [was] alleged to have been committed’; the commencement of trial being the day of arraignment. Sometimes amendments apply ‘only to offences alleged to have been committed on or after the commencement of’ the amending provision. Then there is a provision by which amendments apply ‘with respect to an offence for which a presentment is served on or after’ the commencement of an amending provision.

There are transitional provisions identical with or akin to s 607. Section 159 of the Evidence Act, inserted by the amending Act, is in the same language. Section 586(1) refers to ‘a proceeding for an offence that is commenced’ after the commencement of an amending provision. Section 585A(1) refers to ‘a proceeding that occurs on or after the commencement of the provision’; and s 585A(2) refers to ‘any legal proceeding that commences on or after’ such commencement. That is also the language of s 606(2). Section 589(3) refers to ‘any proceedings that commence on or after the commencement of’ an amending provision of the Crimes Act.

Given that the purpose of transitional provisions is to avoid the legal complications that would otherwise ensue from a mid-proceedings change of rules, the ambiguity and apparent lack of rhyme or reason in these various rules is pathetic. That this ambiguity has cast the legality of dozens of rape trials into doubt is especially awful.

Justice Kellam didn’t mention s49(2), which is of course a case in point (and whose ambiguity could cast doubt on many more proceedings.) Strangely, s49(2)’s language is used in only one other Victorian statute: the Victorian Workers’ Wages Protection Act 2007, passed last year primarily to protect overseas workers from being paid ‘in kind’ (i.e. in sub-standard accommodation.) Of course, there’s hardly likely to be a mystic link between this legislation and the Charter. Rather, in my view, relevant precedents for interpreting s49(2) are to be found in other human rights laws, notably s22(4) of the Human Rights Act 1998 (UK). I expand on this argument in an article forthcoming in the LIJ.


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