The s6(2)(b) jigsaw

The Human Rights Law Resources Centre page on Charter commentary now contains a fascinating paper by Priyanga Hettiarachi (the manager of ‘Governance’ at Premier & Cabinet) arguing that the Charter has a variety of implications for the common law. Hettiarachi concedes that Part 3 of the Charter has no implications for the common law, but instead rests his argument on Charter s. 6(2)(b):

6(2) This Charter applies to…  (b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3…

He focuses on one particular section of Part 2 – Charter s7(2) and its ‘subject under law’ language – as imposing a requirement for the common law to satisfy a test of proportionality whenever it limits a Charter right.

The paper impresses me for the careful attention it pays to the text of the Charter, its development and comparative documents (including proposed drafts), which mirrors the approach I take to questions of interpretation (but which is often sorely lacking in other discussions to date of how the Charter works.) It also contains a useful discussion of situations when the common law may conflict with the Charter (though I’d add plenty more.)  Further, it makes an excellent effort of trying to find ways for courts to give effect to their supposed function under s7(2):

  • developing the common law to accomodate s7(2) consistently with common law principle
  • developing a new statutory rule founded on the express text of the Charter
  • developing new rules of court to accommodate their new functions
  • waiting for the legislature to intervene and fix the deficient common law

These options carefully try (successfully or otherwise) to dodge the claimed constitutional barrier to a statutory-mandated development of the commn law, largely by claiming that the courts’ function under ss 6(2)(b) & 7(2) is not an obligatory one. If the s6(2)(b) argument is right, then Hettiarachi’s paper should be the first port of call for puzzling out its operation.

But that’s where Hettiarachi and I part company. Whereas Hettiarachi sees the s6(2)(b) argument as clearly correct (albeit acknowledging the basis for the alternaitve), I see the s6(2)(b) argument as clearly wrong (albeit conceding that the argument is there to be made.) Hettiarachi’s paper expressly confronts all manner of puzzles about the Charter’s application to the common law, including the complete lack of reference to the common law in the Charter’s purpose provision:

1(2) The main purpose of this Charter is to protect and promote human rights by-

(a) setting out the human rights that Parliament specifically seeks to protect and promote; and

(b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; and

(c) imposing an obligation on all public authorities to act in a way that is compatible with human rights; and

(d) requiring statements of compatibility with human rights to be prepared in respect of all Bills introduced into Parliament and enabling the Scrutiny of Acts and Regulations Committee to report on such compatibility; and

(e) conferring jurisdiction on the Supreme Court to declare that a statutory provision cannot be interpreted consistently with a human right and requiring the relevant Minister to respond to that declaration.

He also concedes that the Charter – despite providing fairly comprehensively for remedies (and lack of remedies) for statutory incompatibility with human rights – says nothing whatsoever about what happens when the common law is incompatible (apart from the option for VEOHRC review.) To my mind, of course, these are key reasons to doubt that s6(2)(b) does anything much at all.

His approach, by contrast, is to treat the Charter like other comparative documents worldwide, as inevitably being relatively silent on some of their effects. Such silence means nothing, he argues. I’d buy this argument if the Charter’s origins and format resembled many of those other broadly expressed constitutional or quasi-constitutional documents, many of which were developed without any specific aversion to the question of their interaction with the common law. But I don’t buy it with the Charter, which not only was drafted with the common law specifically in mind (and specifically, if not  clearly, sensibly or rationally, excluded), but also contains an express Part setting out a number of very specific legal effects. Indeed, I think he (like everyone) pays too little attention to Charter s. 38(2):

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.

If the common law is supposed to be subject, in some way, to the Charter, then why would public authorities be told, when there is a choice between infringing the common law or infringing someone’s rights, to choose the latter?

Hettiarachi and I share a common puzzlement – a frustration no doubt – about what the Charter says and doesn’t say about the common law. The Charter’s drafting is a legal puzzle that has no easy solution. But we choose quite different approaches to solving the puzzle. I suspect that if he and I were trying to solve a badly made jigsaw puzzle, I’d be the one who simply physically forced the pieces to fit (e.g. by dismissing Charter s. 6(2)(b) as a drafting error), while he’d be the one who artistically created a bunch of extra pieces to fit between some of the poorly designed pieces (e.g. by constructing three or four new mechanisms for managing common law incompatibility out of implications and unrelated statuttes.) Alas, the courts will, doubtless, just leave all the pieces in a pile for another day…

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