Can public authorities limit rights?

In several recent posts, I’ve criticised treatises (here and here) and courts (here and here) for saying that public authorities are allowed to breach their conduct mandate if their conduct satisfies the Charter’s test for limiting rights:

7(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…

So, even though public authorities are all supposedly bound by this conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

they can just ignore it if what they propose to do is a reasonable limit on the right in question. For example, the Dental Board can tell a dentist to cut out the religious talk and VCAT can keep a person in a health facility if they decide what they are doing is reasonable. Tribunals that have taken this approach to date don’t spend much time assessing how the reasonableness of their conduct is ‘demonstrably justified’, instead skipping to claims – simply asserted, rather than justified – about whether there are any less restrictive alternatives available.

I think applying the reasonable limits jurisprudence to conduct is a terrible (not to mention lazy) approach to human rights, as it places assessments of whether rights can be breached in the hands of the very people doing the breaching Instead, my view is that Charter s7(2) only permits rights to be limited by laws. This of course leaves lawmakers with carte blanche to breach rights, in accordance with the prinicple of parliamentary (and common law) sovereignty that the Charter is at great pains to uphold. But my approach limits this limiting role to lawmakers. Public authorities can generally only ignore their conduct mandate if those laws allow them to do so. The relevant test is in the (universall ignored) Charter s. 38(2):

38(2) …does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

Charter s38(2) requires all public authorities to assess what actions are reasonably open for them to do given the laws – Charter and non-Charter – that govern them. So, Dental Boards, VCAT and every other public authority simply assess whether or not their proposed conduct would limit a right and, if it does, whether alternative courses of actions, if any, are reasonably open given the remainder of the law. They aren’t limiting laws, parliament (and whoever makes the common law) is. The only question of reasonableness that public authorities have to assess is what options are left reasonably open to them by the available laws, be they non-charter statutes, the common law or conflicting rights in the Charter.

I think the sense of this approach is self-evident. It is also backed by the opening words of section 38(1) (‘Subject to this section‘, i.e. not the rest of the Charter) and the fact that s38(2) admirably allows for the circumstance when laws limit rights, reasonably or not. But am I right? The main problem with my argument is the pesky language of Charter s7(2) – ‘subject under law’ – which could cover only laws themselves but things done ‘under’ them, like conduct. I’m not sure this approach fits with the (odd) word ‘subject’. But here are four more cogent reasons why I think Charter s7(2) is limited to laws, not conduct:

  • The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  • ….the rights and freedoms contained in this [New Zealand] Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
  • The rights in the [South African] Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom…
  • Human rights may be subject only to reasonable limits set by [Australian Capital] Territory laws that can be demonstrably justified in a free and democratic society.

These four provisions are the comparative provisions that were used as a template for Charter s. 7(2). There’s no hint in the consultation committee document or the EM that Charter s. 7(2) was meant to be somehow different from these four. Indeed, the EM says:

The general limitation clause, including the list of relevant factors, is modelled on section 5 of the New Zealand Bill of Rights Act 1990 and, more particularly, on section 36 of the Bill of Rights contained in the Constitution of the Republic of South Africa 1996.

Why would Victoria take a different approach to all four other jurisdictions?  Well, one difference is that, of these four jurisdictions, only Victoria has an explicit conduct mandate. (The UK has one of those, but they don’t have a general limitations clause.) But the ACT, about to get a conduct mandate, is leaving the above wording intact. And, for what it’s worth, the draft WA Charter‘s limitation provision is not only limited to written laws of WA, but is also a sub-section of that statute’s interpretation mandate.

Moreover, the draft Charter proposed by the Consultation Committee followed the comparative line:

A human right may only be limited by a statutory provision if the limit is reasonable and can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom…

This is, of course, an admirably clear and sensible provision and would have removed all doubts about the interaction between Charter s7(2) and 38(1). Indeed, it would sensibly restrict the rights limiting role to the very provisions that are subject to the Charter’s interpretation mandate and declarations of inconsistent interpretation. The other laws applicable in Victoria would have their authority preserved via Charter s. 38(2). Alas, this draft provision was obviously too clear to be retained by the government. Yes, the wording of the current Charter s. 7(2) is yet another bad piece of drafting from the mysterious – and irritating – meddlers, presumably the Department of Justice, who came up with gibberish like Charter s39(1) and the Charter’s EM, when the Charter was presented in parliament. Is there anything those meddlers did right? Why can’t they at least draft in plain English? ‘Subject under law’, my arse.

What the meddlers were thinking – if anything – is revealed in the EM to Charter s7(2):

Pursuant to clause 7 of the Charter, a human right may only be subject under law (whether statutory or common law) to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

So, this is another example of the weird fetish that all the Charter’s drafters have with the common law, which they like to bend over backwards not to disturb. The stupidity is that none of the Charter’s operative provisions affect the common law at all, so there’s no legal consequence whatsoever if the common law is developed in a way that is an unreasonable limit on human rights. The change to Charter s. 7(2) therefore makes no difference (except to make the provision more ambiguous and harder to read.) Statutory provisions, on the other hand, are at least subject to the interpretation mandate and declarations, such as they are, so it’s important to bring them within the limitation provision to preserve them from unnecessary judicial tinkering under the Charter.

And why didn’t the meddlers just replace the words ‘statutory provision’ with ‘law’? Well, as Charter s38(2) reveals, the drafters don’t like saying ‘the law’ without the word ‘under’ in front of it. I guess it sounds more lawyerly. (The ‘under’ language is similarly absent in the Consultation Committee’s draft provision on the conduct mandate.) For what it’s worth, the rest of the EM still implies that Charter s7(2) is still meant to be about laws, not conduct:

Laws which are necessary to protect security, public order or public safety which limit human rights, are examples of laws which may be demonstrably justified in a free and democratic society.

Not conduct, right? There’s no evidence that the drafters (meddlers or otherwise) had conduct in mind when they were drafting Charter s7(2).

Alas, the meddlers also introduced a further clause in Charter s.7 that muddies these waters even more:

7(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.

Now this would have cleared everything up – consistently with my view – if it wasn’t for that bit in brackets. Alas, that seems to imply that, somewhere in the Charter, there’s a provision that allows, not just public authorities but everyone, to limit rights. What the hell? Let’s look at the EM:

Sub-clause (3) provides that the Charter should not be interpreted as giving a person, entity or public authority a right to limit or to destroy the human rights of any person. The purpose of this subclause is to safeguard against the possibility that the Charter might be misused to destroy or limit rights. Parliament recognises in the Preamble that human rights come with responsibilities and must be exercised in a way that respects the human rights of others. For example, it is not Parliament’s intention that the right to freedom of expression should be used to destroy the right to privacy.

This is surely as bad an EM as has ever been drafted. The first sentence would make sense, but for the words in the brackets. The second makes no sense, no matter how you read it. How could the Charter be used (or ‘misused’) to ‘destroy or limit’ rights? And, if it can, how does the actual provision – complete with the crazy stuff in brackets – ‘safeguard’ anyone against that? Nice work meddlers. Wouldn’t it be terrific if a provision introduced to make sure that rights weren’t limited except by parliament was the basis of an argument to the contrary? The only clue to the bit in parentheses is the final two sentences, which contains an extremely weird reference to the ubiquitous balancing jurisprudence, where all human rights need to be balanced against others. Apparently, the big threat to everyone’s rights is…. everyone’s rights. Oy. And how is s7(3) supposedly going to safeguard us against those threats?  Also, ‘a right to limit rights’? Is that Victoria’s big contribution to the law of human rights?

The result of all this analysis: the situation is impossibly unclear. The interaction between Charter s7(2) and Charter s.38 will have to be sorted out by the courts, presumably the Court of Appeal or even – horror of horrors – the High Court. All I can say is: I know how I’d like it to be resolved. And I have great fears that it’ll go the other way.

5 thoughts on “Can public authorities limit rights?

  1. Dear Dr Gans

    It’s not clear to me how the reasonable limits test (or at least some sort of proportionality filter) can NOT be applied to conduct, regardless of how broadly or narrowly the meaning of ‘subject under law’ is defined.

    Surely the question is WHEN the reasonable limits test applies to conduct, not IF it should. Put another way, is a freestanding proportionality assessment of conduct possible under the Charter? Or can that assessment only occur further downstream, upon identifying the relevant law which gives the public authority the discretion (and consequently the obligation via the ‘interpretation mandate’) to choose a rights-compatible option?

    I agree that s 7(2) is likely to be about laws, so I think the answer to the first question is no (which I think is the point you are making?). This may be a problem to the extent that it gives public authorities no obvious mechanism for moderating conduct that is not authorised by law. Does that mean that conduct in all other circumstances (where not exempted by the savings provision for ‘private acts’) will only be compatible where protected rights are upheld absolutely? This sits uncomfortably in the sense that few rights are recognised to be absolute.

    But I think the reasonable limits test is enlivened in the second circumstance, ie the way to s 7(2) from s 38(2) is via s 32(1). And once there, aren’t public authorities, ‘when assessing what actions are reasonably open to them given the laws’, necessarily undertaking a proportionality assessment of when limiting rights might be reasonable in accordance with s 7(2)? How else would they gauge whether or not a particular course of action is compatible with human rights? Is this just semantics? Maybe but I think your analysis highlights the vexed question of how to determine the content of rights. Do reasonable limits inform and set the boundaries vis-à-vis the content of rights? Or can content be discerned independently of reasonable limits? It seems to me that, for most part, the reasonable limits jurisprudence is what fills in the detail of what a right means.

    P.S. Can’t compliment you enough on your blog, it is excellent!

  2. Thanks. That’s a thoughtful comment and I’m not sure I have a complete response.

    I agree that the idea that rights are absolute is a little surprising these days. But I don’t think my argument – that rights are absolute (for public authorities) unless a law says otherwise – is that odd. Some of the key Charter rights are (in part) rights against unlawful conduct: privacy, detention, property, etc. It’d be strange if these rights could be limited by public authorities whenever those public authorities think it’s reasonable to do so, or just because those public authorities are pursuing one of the goals in their head statute (which might be as vague as ‘keep the peace’ or ‘stay in the black’.)

    But, anyway, I think that your intuition – that most rights inherently involve some reasonableness assessments – can be partially – even largely – satisfied without recourse to Charter s7(2) when assessing conduct. At least some rights inherently involve questions of balance or proportion: equality, privacy and fair hearings are the obvious ones. Moreover, my approach – that conduct can only breach rights when a law leaves no other reasonable choice – encompasses situations when the ‘law’ in question is the conduct mandate with respect to a different right or the rights of a different person. Can a police officer force gawking bystanders to back away from the scene of an accident? Almost certainly, even though there are no internal limits on the right to freedom of movement. The police officer’s obligations to act to protection the victim’s life and privacy probably leaves no other option but to act incompatibly with the gawkers’ freedoms of movement and expression.

    Where my approach comes into its own, I think, is the (not atypical) situation when a public authority has a broad legally mandated objective (‘enforce this statute’, ‘stay in the black’) and some broad legal powers (‘search if you suspect the statute is being breached’, ‘evict tenants who don’t pay’) but otherwise legal carte blanche on when and how to act. Should the public authority be able to use its powers to limit someone’s rights whenever it deems that it is using its powers reasonably? Or should a public authority hold off unless and until it feels that its legal objectives leave it no choice? The difference between these may be slight in practice, but the mindset is quite different. I suspect that the former will make virtually no difference to public authorities’ conduct, because they’ll always assess reasonableness through the lens of their own objectives and powers. But maybe the latter goes too far the other way?

    You’re right that the interpretation mandate will certainly apply to (and displace or moderate) some of the laws that might otherwise make a rights breach reasonable (and hence lawful.) But the mandate has its limits: it can’t stretch the words of a law too far; it can’t be inconsistent with the law’s purpose; and it doesn’t apply at all to the common law and Commonwealth statutes. And, as you say, it has no work to do when public authorities are doing something that is unregulated. And, I’d say, when the public authority is loosely regulated in the way I’ve set out above.

    Ultimately, I think this question is best resolved with some concrete examples. I have one in mind and (hopefully) will post on it shortly.

  3. Thank you for taking the time to reply so fully. I’ve also had the chance to read your latest related posts. The coherence of your approach is admittedly compelling. And I do understand the logic – and see the value – of placing s 38(2) at the forefront of any inquiry into conduct. Or at least I do up until the point where it seems to demand a leap of faith – namely, the assumption that public authorities can more or less intuit the reasonableness of their actions without any recourse to the proportionality framework in s 7(2). I’m not sure that relying on some sort of inherent, internal balance between rights (and/or amongst different rights holders) is a satisfactory way for assessing or promoting reasonableness of conduct. I confess I’ve no idea where one would go to look for that balance or how it would work in practice. I’m also not sure how it advances a human rights culture.

    I think your DPP example actually supports a requirement for clear recourse to s 7(2) – which is different to saying s 7(2) can apply directly to conduct. Your analysis took us through:

    (i) whether there was lawful authority for the warning (tick);
    (ii) whether the warning pursued a legitimate objective (tick); and
    (iii) whether the breadth and scope of the warning was rationally and proportionately connected to that objective (fail – presumably).

    That is an examination of reasonable limits as set out in s 7(2), surely. And I don’t think you were anywhere suggesting that the DPP had only two options: to warn or not to warn. The relevant question, as you described, was whether there were lesser restrictive options reasonably open to the DPP given the laws.

    So I would say, it’s precisely when conduct is loosely regulated that it should be put through the proportionality filter in s 7(2).

    Separately, for what it’s worth, I agree that any limitation of rights resulting from conduct which is not lawfully authorised must certainly fail. As you rightly point out, that’s pretty standard fare. Put it down to prior conditioning: I’ve obviously been too long in places where the idea that rights could be self-executing = the height of revolutionary thinking.

  4. I’ve got to admit that the difference between the two approaches does seem to be narrower than I first thought. And Charter ss 38(1) and 38(2) are a bit lacking in explicitly requiring a ‘least possible limitation’ analysis, which is a big pity, as that’s the best bit of Charter s7(2). On the other hand, that pesky ‘subject under law’ language does seem to water down the requirement of lawful authorisation a lot. Lots of bodies – including the DPP – seem to be authorised to do anything with their powers.

    I guess it’s the regulatory coherence point that attracts me to my own approach over the alternative. Charter s7(2) strikes me as a component of the rights ‘dialogue’, which is a conversation between lawmakers (which can include the public, and even public authorities, but only in a distant way); but it strikes me as potentially undermining the rights ‘culture’, which is all about how public authorities (and even the wider public) conduct themselves. The balancing test makes it too easy for public authorities to just shrug off rights, whereas forcing them to justify their adherence to other laws is a good way to get them to think harder about how they go about their legally-mandated tasks.

    But you’re right that there are costs to this in terms of the intellectual coherence of the whole idea of rights. On the other hand, Europe seems to do OK without any reasonable limits clause (including the UK, which has a conduct mandate.) Arguably, the US does fine too. Or maybe not. Im probably a bit too influenced by my own past conditioning: it wasn’t all that long ago that I basically equated ‘human rights law’ with the US Supreme Court…

  5. I think the weakness with s 38(2) is that it seems to collapse two separate ideas (law requires incompatible act vs law can’t be interpreted to enable compatible act) into a notion of reasonableness (cf UKHRA and ACTHRA versions). Not to mention the Wednesbury ghost that it threatens to (re)invoke. Which I suppose makes the absence of any direct reference to a proportionality requirement that much more critical.

    Not sure if it really matters whether rights are subject to a universal limitation clause or have internal limits. All internal limits have the same legality requirement, as far as I know. And, once the conduct is shown to have a lawful basis, the inquiry then pretty much seems to trundle along the usual proportionality lines.

    Maybe this is ultimately a ‘glass half-full or half-empty’ kind of discussion. But I think it’s a detail worth bedding down because the question of whether proportionality can be properly locked into decision-making is probably key for creating an effective compliance regime (and changing mindsets). For myself, I’ve found this discussion immensely useful, so thank you!

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