The messy gift of Charter s. 39(1)

This is the last in my series of posts on the Charter’s most difficult provision:

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

The first post considered the ambiguous origins of all the above words. The second looked at the ambiguous final eighteen words, The third turned to the first thirty six words, focusing on two ambiguous ones: ‘may seek’. This post looks at another three or so ambiguous words. And then we’re done!

To recap, Charter s. 39(1) limits what courts can do when a public authority breaches its conduct mandate. A court can only do something about such a breach if the first thirty-six words of Charter s. 39(1) are satisfied. Those words set out a test about how certain non-Charter laws apply to a particular thing done by a public authority. My view is that they don’t require that the thing the authority did actually be illegal under non-Charter law or even that there be any suggestion to that effect. Instead, they are concerned with a hypothetical: what would happen if the thing was illegal under non-Charter law? If there’d be a relief of remedy in that situation (obviously sourced from non-Charter law), then a court can provide the exact same remedy for a breach of the conduct mandate occasioned by the exact same conduct by the exact same public authority. To quote Evans and Evans, Charter s 39(1) permits the conduct mandate ‘to supply an element of unlawfulness that some other law requires in order to obtain relief or a remedy’.

As I’ve said repeatedly, it seems quite unnecessary to go through the hypothetical of wondering what would happen if a public authority’s conduct was unlawful under a non-Charter law. That’s because Charter s. 38 itself provides that a breach of the conduct mandate is unlawful. So, instead of doing all this imagining, why not just ask a legal question: what can a court do when the public authority in question does something unlawful? The answer is provided by Victoria’s law on relief and remedies, just as it is when any other law declares something to be unlawful. Charter s. 39(1)’s main purpose appears to be just to make it clear (not that its wording actually makes anything clear) that the Charter itself doesn’t provide any reliefs and remedies itself. This is pretty obvious, when you compare the Charter to other jurisdictions that have express remedy provisions, like the UK and (from 2009) the ACT, but it isn’t so obvious when you look at what happened in the US and NZ, where such special remedies were held to be implicit in the mere existence of legal rights.

However, whether it’s needed or not, Charter s39(1)’s language now governs what reliefs or remedies non-Charter law can give for Charter breaches. This post is concerned with that language. The crucial point to note is that Charter ss 38(1) & 39(1) are exclusively concerned with ‘unlawfulness’ a term that doesn’t cover the field when it comes to the law on relief or remedies. I suspect that people who are used to working in adminstrative law may be a little surprised about this. Administrative law, the traditional domain of remedies and reliefs for acts of public authorities, relies (in its common law version) on a variety of prerogative remedies for unlawfulness: certiorari, mandamus, prohibition, declaration, injunction, habeus corpus and… are there any others? The excitement of common law admin law – I won’t talk about statutory admin law like the ADJR, which I’ve happily managed to ignore since law school – comes from its willingness to deem all sorts of decisions to be unlawful in a variety of circumstances, like denial of natural justice or unreasonableness or whatever.

The conduct mandate – with a nod from s39(1) – provides two new circumstances when a public authority’s decisions will be unlawful and therefore attract these common law remedies: incompatibility with human rights and failure to properly consider human rights (subject to Charter s. 38(2)). However, the traditional limits on common law remedies – including some discretions and immunities that make them hard to apply to some public authorities, like magistrates’ courts, the police, prosecutors and Cabinet – still apply. So far, clear enough. But what about the large body of the law of reliefs and remedies that isn’t admin law? Well, that body of law encompasses two quite different models, which aren’t so straightforward when it comes to fitting them in with Charter s. 39(1).

First, many of the reliefs and remedies in the rest of the law aren’t for unlawfulness at all. Instead, they provide remedies for other things that go wrong in decision-making, like unfairness, impropriety, unreliability, miscarriage of justice, oppression, inconvenience and so forth. Here are some examples, from my field of criminal justice:

  • the remedy of a stay of proceedings, which is available if the proceeding would be unfair (as opposed to quashing the proceedings, which is what you do when they’re unlawful)
  • the remedy of bail, which is available if the balance of competing interests (presumption of innocence, securing attendance at court and the like) favours letting a remandee go free until a trial
  • lots of exclusionary rules and discretions in evidence law, including exclusion of admissions as unfair  or unreliable, excluding evidence as improperly obtained and various discretions that operate within exceptions to evidence law rules. (I’ll get to the remedy for unlawfully obtained evidence below.)
  • the appeal remedies for ‘miscarriage of justice’ (as opposed to error of law)

In my view, none of these remedies is a remedy ‘on the ground’ that a public authority’s act was ‘unlawful’. That’s why I think the common view that a stay of proceedings is available for a breach of Charter s. 25 is wrong and also that Bongiorno J  was flat out wrong (for this and other reasons) to grant bail as a remedy for a breach of the Charter rights to a speedy trial. 

Now, it might seem that this is fair enough. After all Charter s. 38(1) says that a breach of the conduct mandate is unlawful, not unfair or any other pejorative term. But a breach of rights is typically regarded as a pretty dodgy thing and certainly could be termed unfair or improper or a miscarriage of justice or all of that. Indeed, it could be argued – though it’s far from a certainty – that statutes that use these terms ought to be re-interpreted under the interpretative mandate as including a breach of the conduct mandate. But that doesn’t help if the remedy is a common law one or the product of a statute that is outside the scope of the interpretative mandate or if such an interpretation is contrary to a statute’s purpose or words. Again, this might seem fair enough too, but it ignores a subtle way that the crimnial justice system (and possible others) respond to unlawfulness and other breaches of legal and quasi-legal standards: it regards such breaches as ‘yardsticks’, sometimes very strong rules of thumb, that indicate that the relevant test – fairness, unreliability, impropriety, whatever – has been breached or that a discretion ought to be exercised in a particular way. Indeed, as previously posted, the Supreme Court of Nofolk Island (aka Weinberg J, now of the Vic CA) relied on alleged breaches of the New Zealand Bill of Rights during the interrogation of Janelle Patton’s convicted killer in just this way (though it ultimately found that there were no breaches, so I guess that was dicta.)

And that’s the problem I see with the wording of s. 39: as I’ve argued elsewhere, I think the words ‘on the ground’ require that unlawfulness be a condition – a necessary or sufficient one – for the operation of a particular remedy. An example of a criminal justice remedy that fits this test is the test for excluding illegally or improperly obtained evidence, because unlawfulness (in the obtaining of evidence) is one of the two alternative pre-conditions for this remedy. Alas, my argument here was misunderstood by Pound and Evans in their annotation:

It has been said that the discretionary nature of this remedy may mean that it is not a form of relief or remedy on the ground that the act or decision was unlawful.

They footnoted my paper, which I appreciate, but that isn’t my argument. Unlawfulness is a necessary condition (or one of several alternative preconditions) for this remedy, which is enough to make this remedy one on a ‘ground of unlawfulness’. It doesn’t matter that there are other preconditions or that this particular evidence law remedy for unlawfulness (like most of the prerogative writs) is ultimately discretionary. My point in the paper was that the only evidence law remedy that seems to satisfy Charter s. 39(1) is actually one of evidence law’s weakest remedies, capable of being swept aside whenever some judge decides that the evidence that was illegally obtained is worth hearing anyway. That’s a big contrast from some of the other rules of evidence (unfairness, unreliability, etc) which (in theory anyway) are mandatory or close to mandatory. Those remedies are the ones that, I say, are not covered by Charter s. 39. If I’m right, then Victorian courts will be more restricted in taking account of breaches of the Charter than they are in taking account of breaches of ACTHRA or NZBORA!

Pound and Evans aren’t convinced by my argument:

It is at least arguable that the concept of a ‘ground of unlawfulness’ in s39(1) can be read purposively so as to include remedies which, although not ultimately turning on a ground of unlawfulness as a relevant factor in the exercise of the discretion.

If that argument’s correct, then all well and good, but it does depend on what the purpose of s39(1) is. Good luck working that out. If Pound and Evans are right, then it would seem that s39(1) does very little (though they think it contains a standing requirement, so I guess they’re fine with that.) The Western Australian draft is a little clearer on this issue, as on others:

41(1) If — (a) a person may ask a court or tribunal for any remedy in respect of an act or decision of a government agency on the ground that the act or decision is unlawful; and (b) the unlawfulness of the act or decision is not because of section 40, the person may ask for the remedy on grounds that include any unlawfulness of the act or decision that is because of section 40.

But it’s not enough. Why not just state Pound and Evans’s approach in the legislation? Or, as I’ve said often enough, just delete s39(1) and let the non-Charter remedies do their work unimpeded by the lack of imagination of the various drafters of Charter s. 39(1) about the law.

The news isn’t all bad, because the wording of Charter s. 39(1) may also capture some remedies that might otherwise not have been caught! The second way that a lot of the law of remedies works is to provide remedies, not for unlawfulness in general, but instead for breaches of particular rules. For example, Victoria’s law on fingerprinting contains this remedy:

464Q(1) Evidence in respect of fingerprints taken from a person is inadmissible as part of the prosecution case in proceedings against that person for an offence if-

(a) the requirements of sections 464K to 464N have not been complied with; or

(b) the fingerprints or any record, copy or photograph of them should have been but have not been destroyed as required by section 464O or 464P.

Now, a literal reading of Charter s39(1) might hold a failure to destroy prints that, while lawful under the fingerprinting law (including ss 464O & P) but unlawful under the conduct mandate (perhaps because of a breach of Charter s. 13(a)) can attract the remedy provided by s464Q(1). And that’s big news, because s464Q is a much tougher remedy than the usual evidence law remedy for illegally obtained (or, in this case, retained) evidence; indeed, it is a mandatory rule with no exceptions. Now, the literal terms of s464Q(1) certainly don’t support applying this remedy to anything other than a breach of ss 464O & P. But Charter s39(1) arguably does the extending!

A surprising result, for sure. Indeed, lots of the law of torts and contracts and god knows what else is buried in private law consists of remedies of this sort. Of course, damages are verboten under Charter s.39(3), but what about all those other remedies like injunctions or specific performance or what have you. Now, this isn’t the only way to read Charter s39(1) and doubtless Pound & Evans would argue that this expanded reading should be barred by a purposive approach to interpreting Charter s39(1). But you really have to start wondering what exactly the purpose of Charter s39(1) is. As this whole series of posts has argued, neither the wording nor the purpose of Charter s39(1) is clear at all. The one thing that is clear is that Charter s39(1) is meant to reduce the amount of Charter litigation. What a joke. Compare the ACTHRA’s new remedies provision:

40C(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

Which do you think will cause more litigation, this or Charter s39(1)?

Whew. And that’s it for the foolish promise I made months back to comprehensively analyse Charter s. 39(1). No more promises, I promise.

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