It looks like the Australian isn’t going to publish a letter to the editor I wrote in relation to Janet Albrechtsen’s recent column (‘Beware the Galloping Imperialist Judiciary‘) opposing a federal charter. Here’s what I wrote:
Janet Albrechtsen (23/4) repeats a common claim of the anti-charter-of-rights movement: that Canada’s provision allowing governments to override that nation’s Charter of Rights ‘has never been used, not once since the charter was introduced more than 20 years ago.’ She needs to obtain a better pamphlet. Override clauses were applied to hundreds of Quebec statutes in the 1980s, including twelve overrides by the Charter-friendly Liberal government, as well as by the governments of Saskatchewan, Alberta and Yukon Territory, on subjects ranging from language to education, agriculture and gay marriage.
You have to wonder why opponents of a charter need to make up claims about other countries and, for that matter, why the predicted judicial dictatorship is yet to emerge in the ACT (in its fourth year of its Human Rights Act) and in Victoria (in the fourth fully operational month of its Charter.)
I’ve heard this claim about Canada’s ‘notwithstanding clause’ (which is similar to the Charter’ s override provision) before. It seems to be a misunderstanding of one of two much narrower claims: that Canada’s federal parliament has never used the clause; and that the clause has never been used in response to a court judgment. Also, these facts – and Albrechtsen’s false claim, for that matter – are not necessarily evidence of a judicial monologue; they may also be evidence of the courts deferring (rightly or wrongly) to the legislature.
To improve my chances of publication, I didn’t go into another wrong claim in Albrechtsen’s column:
The real stealth bomb in a charter of rights is the interpretation clause. Hang in there if it all sounds a bit dry. Charter advocates will hope you start tuning out right about now. Section 3 of the British Human Rights Act – more or less repeated in the Victorian Charter – says that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This is an open invitation to judges to ignore even the clearest of parliament’s intent. The House of Lords has said so, describing this innocuous little “reading down” provision as “dangerously seductive”, and “unusual and far-reaching in character”.
She’s right about Britain, but wrong about the Charter. That ‘more or less’ hides a crucial difference between s. 3 of the UK HRA and Charter s. 32(1):
So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
Now, that omission’s gotta be deliberate!
The conclusion of my letter shouldn’t be taken as meaning that I back a federal Charter (or Victoria’s for that matter.) I just don’t think much of the ‘judicial dictatorship’ argument. I don’t think a charter will make one iota of difference to judges’ imperialist capacities and tendencies. We already have those in abundance through the courts’ regular jobs of applying the regular law, especially the common law they’re exclusively responsible for making Indeed, I fear that some judges’ arrogant view about the terrific job they already do will undermine parliament’s intention that all of the law be subjected to a fresh human rights analysis (as opposed to new statutes that annoy the courts.) In my view, the much better case against the Charter is the ‘lawyers’ picnic’ argument. See this whole blog.