The Charter bends over backwards – and sometimes beyond that – to avoid changing the common law:
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…
38(2) Subsection (1) 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.
The Consultation Committee’s stated purpose for this was to avoid a supposed constitutional problem arising from Australia’s single national common law. According to Pamela Tate, who advised the Committee:
By contrast with the United States federal system, in which each State has its own common law ultimately determined by the respective State Supreme Court, in Australia the jurisdiction conferred on the High Court includes appeals from the courts in both the state and federal hierarchies. It is ultimately the High Court which will determine the common law for the whole of Australia.
Of course, the existence of a single national common law does not inhibit the incremental differentiation in common law development by State courts as new and unanticipated cases arise that need to be determined. However, that development is ultimately subject to pronouncements by the High Court. Nor does the existence of a single common law preclude a State Parliament from modifying common law requirements; for example, by capping damages, or introducing statutory thresholds to be met before causes of action can be brought, or indeed by abolishing particular cases of action altogether.
However, a consequence of the existence of a single common law is that it is most likely beyond the power of a State Parliament to direct State courts to develop the common law by analogy with the values protected in the Charter. The constraint that flows from this consequence is that the Charter could not, and does not, impose direct duties on State courts to develop the common law in a manner that would intentionally entail the differential development of the common law in Victoria from its development throughout the rest of Australia.
I’ve written elsewhere about the problems this constitutional argument poses for the Charter’s success:
[T]he resulting legal effect of the Charter on the conduct of court proceedings would be, at best, a pastiche of weak restraints, waxing and waning as courts drift between their administrative and non-administrative capacities, proceedings pass in and out of the purview of suitably malleable statutory provisions and public authorities enter and leave the courtroom.
And I’ve noted in this blog the disturbing apparent phenomenon of the Attorney-General’s department using its intervention power to raise the constitutional point and scare off litigants from relying on the Charter at all.
I also happen to think that this supposed new constitutional limitation on the power of state parliaments is bollocks, notably as the Constitution doesn’t even mention the common law. Unfortunately, especially as this argument is being put forward as plausible, it is indeed most likely that the High Court will embrace it wholeheartedly, as it maintains the monopoly on common law development they gave themselves in the early days of the Gleeson court.
But the biggest downside of these arguments for human rights is nothing to do with the Charter, but rather with the quality of the common law that will result. As it happens, this isn’t just my view, but the view of the outgoing president of the NSW Court of Appeal (which he put to an audience including members of the Gleeson court):
In 2007, when exercising its constitutional functions of correcting error and declaring the common law, the High Court signalled a departure from… the [previous] rules of judicial engagement. New and now binding rules of precedent that were ushered in on this occasion declare that the earlier decision of any intermediate appellate court in Australia is now generally binding on all others. So too are the ‘seriously considered dicta’ of a majority of the High Court in any case, regardless of its age. These rules and the High Court’s response to this Court of Appeal’s erroneous though genuine attempt to develop legal principle go well beyond giving effect to the principle of a unitary common law of Australia. They have been read throughout the country as the assertion of a High Court monopoly in the essential developmental aspect of the common law.
In the same appeal, the High Court resolved an issue of controversial legal principle with a haughty declaration that it did not propose to examine a recently published critique on point emanating from a current English Law Lord or to examine other legal writing which ‘might offer support’ for the legal proposition suggested by the Court of Appeal that the High Court proceeded to reject in categorical terms. In combination, these discouraging rules of process for inferior courts and this adopted methodology for the High Court itself will have the effect of shutting off much of the oxygen of fresh ideas that would otherwise compete for acceptance in the free market of Australian jurisprudence. In my respectful opinion, decision-making by these blinkered methods will be stunted unnecessarily, whether it proceeds in the particular to the affirmation of older rules of law or to their principled development.
In a word: word!
President Mason was speaking about a NSW equity matter (which, I’ve got to confess, I found too dull to read. Talk about a lack of oxygen! How do you equity lawyers cope?) However, there’s a much clearer case of the High Court’s new methodology from a year earlier. In Phillips v R  HCA 4, the High Court, after quashing multiple rape convictions in a thoroughly flawed and offensive manner, decided – for no stated reason – to stamp out a test developed by the Queensland Court of Appeal in an attempt to make sense of the High Court’s 1995 judgment on the similar fact rule. That judgment, Pfennig, was so incomprehsible that the prosecution and defence had agreed to follow the Queensland test, O’Keefe, instead! Here was the High Court’s unanimous response:
It must be said at once that it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled. Of course, in criminal cases it is often necessary for trial judges and Courts of Criminal Appeal to elaborate upon rulings of this Court; to gather together rules expressed in several cases; to apply rules to different facts; and sometimes to reconsider rules affected by later legislation. Within spaces left by the binding determinations of this Court, trial judges and intermediate courts retain their proper functions. However, these do not extend to varying, qualifying or ignoring a rule established by a decision of this Court. Such a rule is binding on all courts and judges in the Australian Judicature.
The tests advanced in O’Keefe are expressed differently. Because they are expressed differently it cannot be assumed that in every case they would operate identically to the tests expressed in Pfennig. Indeed, much that is said in the reasons in O’Keefe might be read as suggesting that the tests propounded there were intended to have a different operation from those stated in Pfennig. These are reasons enough to conclude that the O’Keefe tests should not be adopted or applied. Intermediate and trial courts must continue to apply Pfennig.
Note that the High Court didn’t even look at the content of the O’Keefe test. Just that it was expressed differently and the reasons (supposedly) suggest a different intended operation. (A reading of O’Keefe shows that to be total nonsense.) For a full article by me about this, see here.
If the Victoria Consultation Committee is right – or if the High Court takes up their suggestion of protecting its monopoly from encroachment by state legislatures – then the common law will become exclusively the province of the High Court itself, including its (present) anemic approach to rights. If that happens, then the major outcome of the Victorian human rights consultation will be a major reduction in the legal protection of all Australians’ rights.