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.