The High Court of abstractions

Two new High Court decisions this week interpret two unclear NSW statutes, respectively made unclear or re-enacted without clarification under the wise leadership of Bob Carr, who passionately argues that human rights statutes are unnecessary for developing good laws:

Damien Carrick: Proponents say it’s not about judicial activism, it’s a filter, supporters of charters say it’s a useful tool when designing laws and developing policies and delivering services. There are lots of design problems which can be avoided if you run any proposed laws through a charter filter.

Bob Carr: As the ultimate filter in our system, what’s wrong with parliaments? And I’ve seen no evidence that we get better laws from a charter…

In an earlier OpEd, he spelt out why human rights statutes produce bad legislation:

A menu of abstractions – that is, any attempt to list rights – wrenches from the cabinet table and the legislature and delivers to the courtroom things that ought to be determined by governments…

The two cases this week are a neat test of Carr’s claims about the relative merits of political and judicial approaches to legislation and, in particular, the role of abstractions in the law.

CTM v R [2008] HCA 25 concerned this criminal offence:

66C(3) Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.

The question for the High Court was whether a person who honestly and reasonably believes that the other person is 16 years old has a defence. This question was complicated by the NSW government’s 2003 repeal of a statutory defence along these lines that was limited to heterosexuals, as part of a package of laws ridding the Crimes Act of laws that distinguish between heterosexuals and homosexuals.

Kuru v State of NSW [2008] HCA 26 concerned a provision subsequently re-enacted in the NSW 2002 omnibus police powers statute as follows:

(1) A police officer who believes on reasonable grounds that a domestic violence offence is being, or may have been recently, committed, or is imminent, or is likely to be committed, in any dwelling may, if invited to do so by a person who apparently resides in the dwelling (whether or not the person is an adult) enter the dwelling and remain in the dwelling for any of the following purposes: (a) to investigate whether a domestic violence offence has been committed, (b) to take action to prevent the commission or further commission of a domestic violence offence.

(2) However, a police officer may not enter or remain in a dwelling merely because of any such invitation if: (a) authority to so enter or remain is expressly refused by an occupier of the dwelling, and (b) the police officer is not otherwise authorised (whether under this or any other Act or law or subsection (3)) to so enter or remain.

The question for the High Court was what happens when an occupier is at first happy for the police to remain but then asks them to go before they have finished their investigation. This question is complicated by a further provision governing how long police can stay on premises: ‘only as long as is necessary to take the actions required or permitted’ by the statute.

What is interesting about both these puzzles is the impossibility of solving them by reference to either the language of the statutes or the policy behind them. The current NSW child sexual offence replaced a decades-old clear statutory provision on mistake of age (then in s77(2)) with… silence. As the High Court noted, the silence may have been a deliberate attempt to avoid sidestep a fundamental question:

In politics, compromise is sometimes achieved by reticence. This may create a problem for courts that have to deal with the outcome of the compromise, but that is the way of the democratic process. In the equalisation undertaken in 2003, the New South Wales Parliament regarded the “express defence” in s 77(2) as no longer appropriate. It was a defence that, in its terms, differentiated between homosexual and heterosexual activity, so it at least had to be changed if there were to be the desired equalisation. It could not have been left as it was. Yet the problem to which that provision was addressed did not disappear…

The NSW provisions on entry into premises demonstrate a different political solution to a different but equally tricky problem by simply enacting two contradictory provisions, one championing the rights of occupiers to control who enters their property, the other the rights of the police to stay as long as they need to to do their job. Both puzzles involve competing policy considerations: criminal responsibility vs child protection; property rights vs police functions.

So, how do you solve these very real problems of interpretation? There’s only one way: with abstractions.

In CTM, the High Court held that the solution arose from a bog standard – but entirely abstract – common law principle about criminal responsibility:

A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist.
The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject

And in Kuru, the Hight Court felt that the terms of the provision on invitations overrode the provision on police tasks but also held that:

To the extent that, in the end, there was any ambiguity about the meaning and ambit of the authority provided to police… to remain in the appellant’s flat after he had made it clear that he was requiring them to leave, such ambiguity must be resolved in favour of the foregoing construction. This is because of the strong principle of Australian law defensive of the quiet enjoyment by an occupier of that person’s residence… It derives from the principles of the common law of England. Indeed, it appears to be a principle against which the provisions… of the Act were written. It defends an important civil right in our society. If Parliament were to deprive persons of such a right, or to diminish that right, conventional canons of statutory construction require that it must do so clearly.

Now, Carr was actually careful to say in both his article and on the Law Report that he had no problem with the common law being used to resolve statutory ambiguity. But the mystery is why he had no problem. The common law is a creature of the judiciary and, as the above examples show, a source of quite abstract principles that affect matters that are quite within parliament’s mandate to determine. So, why is Carr happy with that but convinced that parliament creating its own list of interpretative principles – as appears in Part 2 and s. 32 of the Victorian Parliament – is a recipe for anarchy? 

Speaking of anarchy, Heydon J dissented bitterly and hilariously in both cases. His reasons are a model in the arbitrariness of interpretation without reference to abstract principle.

In CTM, Heydon:

  • doubted the fundamental status of exculpatory mistake as a common law doctrine (apparently because Spigelman CJ didn’t mention it in his lecture on human rights and statutory interpretation. Presumably, Spiggs thought that the golden thread was in a quite different class of fundamentalness.)
  • characterised the majority’s approach as a radical change to a 93-year-old tradition of statutory mistake defences. (Apparently, implying a common law defence of similar scope – but without a limit to heterosexuals – is more radical than just assuming that the NSW parliament ended that tradition completely by repealing it.)
  • characterised the mistake doctrine as obscure because it applied to all ages and all sexualities
  • claimed that allowing reasonable mistakes about age was anomalous because only honest mistakes were required for intellectual disability offences. Allegedly, ‘the anomaly would not exist’ if no mistakes at all were allowed about age.
  • claimed that a NSW decision holding that mistake about age was an implicit defence to the previous offence of homosexual underage sex was irrelevant because that offence was repealed in 2003.
  • decided, on this occassion, to waive his usual hostility to considering extrinsic materials because of two sentences in the 2R speech referring to the age limit as ‘absolute’

Most hilariously of all, he rejected the defendant’s appeal to wisdom:

The appellant contended that the Court of Criminal Appeal’s construction should be rejected because it was “Draconian”. It would cause an accused person to be punished even though that accused person was not “morally blameworthy” by reason of an honest and reasonable belief that the person under 16 with whom sexual intercourse had taken place was 16 or over. It would mean that the accused could be convicted because the other participant had lied about his or her age. It is true that the consequences of a particular construction can be taken into account in assessing the likelihood of that construction being correct. But once the conclusion is reached that legislation bears a particular construction, even if a court thinks that legislation may be “uncommonly silly”, “unwise, or even asinine”, that consideration cannot prevail over the legislative language

In support of the latter propositions, he cited  the famous US case of Griswold v Connecticut, where the majority struck down a law requiring imprisonment for anyone who uses contraceptives as a breach of the abstract principle of ‘privacy’ – not that this was so academic for the Griswold, a doctor facing a minimum 60 days and up to a year in prison for advising married couples on planned parenting  –  later the basis of the US Supreme Court’s abortion jurisprudence. Heydon J, of course, cited the dissenting judgment.

But, strangely, the very next day, Heydon J dissented in Kuru. Why? Because the construction that the High Court said flowed from the words of the legislation and the right to property, says Dyce, was absurd:

The plaintiff’s construction has the result that if police officers who had lawfully entered, or were lawfully remaining in, a dwelling-house because of a s 357F(2) invitation, on observing that a person present appeared to be badly injured, would have no statutory right to remain merely because an occupier of the dwelling-house expressly refused consent to remain. A construction of the legislation which would deprive police officers who, pursuant to s 357H(1)(a)(ii), were trying to control severe haemorrhaging, or were trying to restore an injured person’s heart beat, or were trying to prevent an injured person from choking to death, of any statutory right to remain and continue their endeavours once consent to remain was refused, must be rejected. It is necessary also to reject a construction of the legislation which would deprive police officers, on the point of lawfully arresting someone pursuant to s 357H(1)(a)(iii), of any statutory right to remain in order to do so the instant consent was refused.

Of course, even a first year law student would well know that the common law either provides the police with powers to stay in all these situations or with an obvious defence to any civil or criminal action for trespass. But the point is that Heydon thought the majority’s construction was unwise, even asinine.

Only Heydon himself would deny what’s going on here. Because he, like Bob Carr, thinks that abstractions (in this case common law principles) have no place in interpreting legislation, Heydon is instead making decisions according to his personal foibles. Notably, both his dissents this week favour the police and prosecutors over the individuals they dealt with (respectively, a promiscuous teen and a loudmouth common law spouse.) He and Bob Carr could probably have a nice long natter about louts. Perhaps Heydon can do us all a favour and quit the High Court to run for premier of NSW, where his non-abstract approach to legislation would fit in quite nicely.

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