The Charter’s two most feted (and, to date, little-used) provisions are its interpretation mandate:
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.
(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.
and its declaration power:
36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.
These provisions won’t turn Victoria’s more draconian laws into rights-friendly ones. But it may ensure that, when parliament expresses itself flexibly, unclearly, unintelligibly or thoughtlessly, the courts will have good reason to resolve the mess in a rights-friendly way. And, when the mess can’t be resolved, the courts can raise a (small) stink about it.
But when do these special rules apply? Their scope is only as wide as the term ‘statutory provision’. That’s defined in the Charter as follows:
statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument
And what’s an ‘Act’ or a ‘subordinate instrument’? These words are defined in the Interpretation of Legislation Act 1984, which self-referentially tells us:
38 In all Acts and subordinate instruments, unless the contrary intention appears-
Act means an Act passed by the Parliament of Victoria…
subordinate instrument means an instrument made under an Act– (a) that is a statutory rule; or (b) that is not a statutory rule but- (i) contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or (ii) is of a legislative character…
Seems pretty wide? But it’s not as wide as the ACT, whose interpretation mandate also covers:
- old acts of other legislatures (the UK, the Commonwealth and NSW) that were grandfathered in when the ACT got self-government
- instruments that are not legislative in nature that are made under an Act or instrument or a power under given by any law
The former covers things like the Magna Carta while the latter covers things like search warrants. In the ACT, but not in Victoria, these things can now be re-interpreted under the new mandate.
Still, some laws that apply to Victorians will miss out. The two most obvious ones are the common law and Commonwealth statutes. In its Alert Digest No 6 of 2008, SARC picked up a third category.
The National Gas (Victoria) BIll 2008 is Victoria’s statute enacting the new COAG-developed nationwide gas pipeline management scheme. The details of the scheme are dull as hell, but the mechanism for enactment are a gas for Charter geeks like me. These are the key provisions:
7 The National Gas Law set out in the Schedule to the South Australian Act, as in force for the time being (a) applies as a law of Victoria; and (b) as so applying may be referred to as the National Gas (Victoria) Law.
8 The Regulations in force for the time being under Part 3 of the South Australian Act- (a) apply as regulations in force for the purposes of the National Gas (Victoria) Law; and (b) as so applying may be referred to as the National Gas (Victoria) Regulations.
Whoa. So, Victoria’s Parlaiment is about to ‘apply as a law of VIctoria’ some documents that exist someone else, specifically in a schedule to an Act passed by South Australia’s parliament and some regulations made (initially) by the South Australian governor and (later) on the unanimous recommendation of all the relevant Australian ministers. As near as I can tell, neither the Law nor the Regs are statutory instruments, as the former isn’t an Act ‘passed by the Parliament of Victoria’. In particular, the National Gas Law isn’r contained in the National Gas (Victoria) Bill, although it seems like it it. Indeed, the bill is as thick as a telephone book. That’s because it includes an ‘appendix’ containing the entire South Australian Act, including its schedule and EM. Tricky.
There’s more too, as the Law provides for the creation of National Gas Rules, initially by a South Australian Minister and later by a body called the Australian Energy Market Commission. The Rules are given force of law in Victoria by the Law, which in turn is given force of law by clause 7 of the Victorian Bill. And there are various statutory instruments made under the Rules. Again, none of these things appears to be a statutory instrument under Charter s32 and, therefore, none seems to be subject to rights-friendly interpretation.
As well, the National Gas Law contains its own schedules, the second of which contains some rules on how the Law, Regs and the rest are to be interpreted:
7 (1) In the interpretation of a provision of this Law, the interpreation that will best achieve the purpose or object of this law is to be preferred to any other interpreation.
8(1) In this clause- Law extrinsic material means relevant material not forming part of this Law…
(2) …[I]n the interpretation of a provision of this Law, consideration may be given to Law extrinsic material capable of assisting in the interpretation (a) if the provision is ambiguous or obscure, to provide an interpretation of it; or (b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable, to provide an interpretation that avoids such a result; or (c) in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.
These two rules seem to override, at least in part, the two wings of Charter s. 32.
The result: Victoria’s parliament is giving force to some hefty laws that are not subject to either the interpretation mandate or a declaration of inconsistent interpretation. (The first 44 clauses of the Bill could be subject to both. So, I guess if there’s something really bad in the National Gas Law, Regs or Rules, then a court could make a declaration about clause 7.)
SARC didn’t identify any noteable rights issues with the National Gas Law, but was concerned that the technique of applying other documents as laws in Victoria side-stepped the Charter’s own mechanism for avoiding the application of the interpretation mandate and the declaration power:
31(1) Parliament may expressly declare in an Act that that Act or a provision of that Act or another Act or a provision of another Act has effect despite being incompatible with one or more of the human rights or despite anything else set out in this Charter.
Alas, the unfortunate view persists in Victoria that overrides are meant to happen for emergencies only. I think this is silly because emergency laws will typically satisfy the reasonable limits test, as this session’s Public Health and Wellbeing Bill shows. Rather, in my view, overrides are for problems that the Victorian parliament can’t deal with on its own, like, say, fitting in with a national scheme (where our partners in federation are yet to jump on the human rights bandwagon.) Such exceptional circumstances seem to fit the Charter’s bill. Based on previous correspondence, the government isn’t likely to agree.