The other half of Sunday’s Age article on the Charter concerned the prospect of legal confusion caused by the Charter. I think this issue merits much more attention than the usual debates about judicial activisim and dialogues and whatnot.
That being said, I’m sad to see it being raised in this way:
Prosecutors are reluctant to air publicly their concerns about the charter, but one senior prosecutor, who declined to be named, told The Sunday Age the courts would be flooded with litigation that would provide many defence lawyers with “a lifelong right to an income that they probably don’t deserve”. The charter was “an absolute disaster” for the court system and would clog it up for no good reason, the prosecutor said. The traditional system of common law had adequately protected Victorians’ human rights for decades, and the charter’s authors were “frankly not bright enough” to make it watertight.
Hey there ‘senior prosecutor’! Why exactly aren’t you willing to go on the record with these comments? If your excuse is to do with the integrity of the Office of Public Prosecution, then why are you willing to lend your title to them, especially the personal insults?
Here’s the way the same point could have been put:
Mr Gans said the new law presented many problems. “I think people are right to worry about the charter bringing more complex legal arguments to the courts and, in the meantime, a lot of uncertainty, delay and confusion. And the blame for that is the text of the charter itself, which has a lot of ambiguity,” he said.
This is the sort of thing I was talking about (and have discussed in detail in this blog and elsewhere):
4(1) For the purposes of this Charter a public authority… does not include… (j) a court or tribunal except when it is acting in an administrative capacity.
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…
39(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.
49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.
I’ve no doubt that these provisions are stupid. The obvious explanations are that someone had an off day or, more likely, the process that led to the drafting of the Charter was flawed, or perhaps the authors lacked experience in criminal justice. Ignoring those options and blaming the authors’ intellect isn’t a sign of brightness. Doing so anonymously is simply cowardly.