Bob Carr vs the Constitution

Bob Carr was on RN’s Law Report today, repeating his case against statutes like the Charter. While the core of his case is the familiar claim that human rights law lets judges decide things that should be exclusively for parliament, his argument gets its teeth from two anecdotes:

  • “British Columbia came up with a scheme to encourage doctors to practise there, with a finely tuned system of incentives. The provincial Supreme Court struck it down, citing section 6 (“mobility rights”) and section 7 (the “right to life, liberty and security”) of the Canadian Charter of Rights and Freedoms. Canada’s rural population is still under-served by doctors, thanks to judges who want to write society’s rules.”
  • “[P]olice and bureaucrats in Britain anticipate getting overruled on human rights grounds and start to shape their responses. Pity the factory owner who, this month, had to pay pound stg. 20,000 to bailiffs to remove 40 Gypsies who had torn down a 2.4m fence and occupied his factory land. The police refused to act so as not to breach the travellers’ human rights.

To the Law Report’s credit, it interviewed  Brian Walters SC who (unlike Carr) identified the relevant British Columbia case and pointed out that the scheme – designed by a Commission, not parliament – was struck down on the basis that it gave preferential treatment to British Columbians (by grandfathering anyone in BC when the scheme was introduced.) So, the issue was not freedom of movement, but discrmination on the basis of residence.

Some further points about the British Columbian case are also worth making. First, contrary to Carr’s claim, the BC Supreme Court, far from ‘citing’ section 7 of the Canadian Charter, instead found that the scheme did not breach any of the doctors’ rights to liberty. The Court of Appeal, without giving the issue much consideration, agreed with the lower court. Second, the BC decision is not applicable under the Victorian Charter, because Victoria’s right against discrimination is limited to specific grounds, which do not include residence of a state. However, third, the BC scheme would almost certainly be struck in Australia under s. 117 of the Commonwealth Constitution:

A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

So, Carr’s BC example isn’t an argument against the Charter; it’s an argument against the Commonwealth Constitution.

And that’s no surprise, because his other example – the one about gypsies – echoes a familiar objection that was aired about the Commonwealth Constitution. Note that the gypsy example doesn’t mention any decisions, but rather a claim that the police are too scared to do anything about invading gypsies. Nice. On the Law Report, Carr attributes this claim to a mate of his in the UK parliament. See, it’s not Carr who’s being a racist!  This is presumably the same mate who Carr refers to in his article in the Australia:

A friend of mine who sits in the House of Commons says when his constituents talk about loutish behaviour in the streets or around housing estates, they say: “I suppose the police can’t do anything about it because of their human rights.”

To think I used to defend Carr as a canny (if somewhat Machiavellian) politician willing to pander to law-and-orderism to achieve other more legitimate aims, rather than lose everything to wedge politics by the opposition. And yet here he is peddling the same bottom-feeding nonsense now that he’s left politics. Egg on my face.

Anyway, it’s true that there is a decision of the ECtHR that held that an eviction of some gypsies from land was contrary to their right to home life. But that decision concerned land that the gypsies were legitimately on and had lived on for over a decade as legal tenants. Their landlord accused them of being a nuisance, but rather than proving those claims, the local authority simply gave them 28 days notice, as gypsies had long been excluded from general provisions providing for security of tenure for tenants. The ECtHR, noting that the original justification for that exclusion – the constantly moving life of gypsies – was obviously no longer valid, ruled that the lack of procedural protection – the gypsies were denied judicial review of the decision – was disproportionate to the state’s goals. Maybe there are some cops who say that this decision means that gypsies can’t be evicted from illegal occupation of land, but they – and certain former Labor premiers – are either misinformed or are peddling falsehoods for some other end. Back in 1900, similar falsehoods were peddled about the Constitutional barriers to controlling Aboriginals and coloured people.

7 thoughts on “Bob Carr vs the Constitution

  1. Jeremy,

    You say that “the issue was not freedom of movement, but discrmination on the basis of residence”. However, the justice who delivered the Court’s judgment stated:

    “[50] I do, however, concur with the assessment of the chambers judge that the provisions giving preferential treatment to University of British Columbia graduates and those in training as of a certain date were and are inconsistent with individual mobility rights enshrined in s. 6 of the Charter.”

  2. But note the very next sentence: “Such measures seem to me to clearly differentiate between applicants on the basis of province of present or previous residence” Also, see the previous para [49], where the same judge rejects an attack on other aspects of the scheme because they do not distinguish between people on the basis of province of residence. More generally, if you look at s6 of the Canadian Charter, you’ll see that there is no general right to move within Canada (as there is a right to move within Victoria under s12 of the Victorian Charter), just a general right to enter, leave and stay in Canada (s6(1)). Instead, s6(2) gives a narrower right to move to another province and to gain a livelihood and s6(3) contains a general exception for laws that are of general application and that do not discriminate on the basis of residence. So, all (internal) mobility cases in Canada are really residential non-discrimination cases.

  3. Thanks Jeremy. However, s 6 “Mobility Rights” of the Canadian Charter does in fact relate to freedom of movement. It relates to (among other things) the right to “move” to and take up residence in any province. Admittedly, that right is not exactly the same as the following right given by s 12 of the Victorian Charter:

    “Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.”

    Bob Carr’s reference to “mobility rights” was not inaccurate or misleading.

    As you have pointed out, his reference to s 7 of the Canadian Charter was misleading. Equally, the reported comment by Brian Walters QC was misleading as it gave the false impression that the court decision was not based on a Charter right.

    You have also pointed out that the BC scheme would probably be impermissible in Australia under s 117 of the Constitution.

    However, there is a big difference between the methodology used by Canadian courts in applying the Canadian Charter and the methodology used by our High Court in applying s 117.

    Canadian courts applying the Charter use a proportionality test which involves consideration of policy issues and “line-drawing” on political, moral and social issues. In contrast, our High Court has ruled out using a proportionality test when applying s 117 (Sweedman v Transport Accident Commission (2006) 226 CLR 362, [65]–[66]):

    “65. By its terms, s 117 of the Constitution is addressed to protecting a “subject of the Queen” from disability or discrimination in the form of laws and governmental actions or policies. It is therefore necessary in each case where s 117 is invoked to examine the operation of the impugned law, action or policy, to decide whether the discrimen it chooses concerns the State residence of the person who invokes its provisions.

    66. It is unnecessary to consider, on the footing that there was a disability or discrimination attributable to residence, whether this was appropriate and adapted (sometimes described as “proportional”) to the attainment of a proper objective.”
    (footnotes omitted)

    In the current debate within Australia about bills of rights, a key issue for consideration is the question of who should be doing the “line-drawing” (both in theory and practice) on political, moral and social issues.

  4. Brian Walters didn’t claim that Waldman wasn’t about Charter rights, at least not in the Law Report transcript. Anyway, as it happens, the BCSC (which is what Carr referred to) did invalidate the scheme on admin law grounds, but that aspect of the decision was overturned by the BCCA.

    Carr’s claim about s6 was accurate, but not precise; short titles can be very misleading when it comes to rights and the type of mobility in s6(2) is really about a free Canadian market in jobs and housing, which is more of a federalism issue than a rights issue. As you point out, the real question is whether the decision was based on proportionality analysis or not (not that Carr puts it that way; he just refers to ‘abstractions’.) But if you look at the BCSC judgment, you’ll see that the proportionality question was never reached, because the judge found that there was no rational relationship between the provincial discrimination and the purpose of the legislation. So, the decision really was identical to one that would be reached under s. 117.

    I’ve got no problem with Carr’s political objection to rights, just with how he’s making his case. I’d be willing to give him the benefit of the doubt on the question of ‘misleading’ or not if the BC example was the only instance of dodgy use of examples in his article. But the more I look into his examples, the less I think he’s read or researched any of the cases he mentions, despite his legal training. [EDIT: Oops. My mistake. He doesn’t have any legal training, beyond his life as a lawmaker. Which explains a lot about his analysis and tilts my assessment somewhat away from deliberate deception, though I’m not sure towards what.] He’s basically just lending his credibility to some very virulent, inflammatory and misleading claims that make the rounds of the anti-BOR sites on the net.

  5. I’m not convinced by your argument that s 6(2) is really about freedom of markets, rather than a freedom of people. Perhaps I’m being too pedantic. Thanks again for your considered responses.

  6. Oops. For some reason, I though Carr was a former solicitor, but he isn’t. Maybe I had him mixed up with John Howard! Thanks. I’ll fix this. It does explain a lot, actually.

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