The retro Charter

The new case from the Mental Health Review Board raises a difficult question about the retrospective operation of the Charter. The respondent wished to bring the Charter’s interpretation mandate to bear on the question of whether the MHRB’s failure to review the extension of his community treatment order in 2007  meant that the order became invalid. The problem is that the interpretation mandate didn’t exist at the time:

2(2) Divisions 3 and 4 of Part 3 come into operation on 1 January 2008.

For a change, this question isn’t a matter of applying the Charter’s transitional provision:

49(1) This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement

(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

(3) Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.

While it might be argued that the MHRB matter in some respects commenced in 2005 – when the respondent was first made the subject of an involuntary treatment order – or 2006 – when his CTO was first reviewed by the MHRB, everyone in this matter seems to have assumed that the proceeding either commenced in 2007 – when the contentious CTO extension made made and not reviewed – or 2008, when the MHRB belatedly decided to review the matter, thus keeping it free from the dreaded Charter s. 49(2). Charter s. 49(3) bars the operation of the conduct mandate (at least until 1/1/8) but not the interpretation mandate. And Charter s. 49(1) – which appears to cover the interpretation mandate – speaks only to the statutes it covers, rather than the conduct that might be affected by any re-interpretation.

So, can Charter s. 32 have any effect on matters before 1/1/8? The MHRB, adopting the argument of the Attorney-General (who is making a habit of this sort of Charter-shrinking stance) said ‘no’:

 It is the decision of the legal member that s2(2) sets out the commencement date of the Charter, clearly indicating that the Charter rights come into effect from 1 January 2007, but that Divisions 3 and 4 of Part 3 come into operation from 1 January 2008…. Therefore, it is the decision of the legal member that the Board can only cover the impact of the Charter on and from 1 January 2007, and is unable to apply it, in any respect, to… its interpretative powers under s32 before that date.

And this is just bad law. Commencement provisions are not transitional provisions. Rather, they simply define what ‘retrospective’ means for a particular provision. Whether the provision applies retrospectively is a matter of statutory interpretation. And that’s a complex question indeed.

Without a doubt, the most pertinent and comprehensive discussion of the very question of the retrospective operation of a human rights interpretation mandate occurred earlier this decade in the UK, notably, in Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40. There, the House of Lords said of its interpretation mandate (s. 3 of the UKHRA), in observations that could be equally made of Charter s. 32:

On its face section 3 is of general application. So far as possible legislation must be read and given effect in a way compatible with the Convention rights. Section 3 is retrospective in the sense that, expressly, it applies to legislation whenever enacted. Thus section 3 may have the effect of changing the interpretation and effect of legislation already in force. An interpretation appropriate before the Act came into force may have to be reconsidered and revised in post-Act proceedings. This effect of section 3(1) is implicit in section 3(2)(a) [which is similar to Charter ss. 49(1) & 32(3)] So much is clear.

Considerable difficulties, however, might arise if the new interpretation of legislation, consequent on an application of section 3, were always to apply to pre-Act events. It would mean that parties’ rights under existing legislation in respect of a transaction completed before the Act came into force could be changed overnight, to the benefit of one party and the prejudice of the other. This change, moreover, would operate capriciously, with the outcome depending on whether the parties’ rights were determined by a court before or after 2 October 2000. The outcome in one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. Parliament cannot have intended section 3(1) should operate in this unfair and arbitrary fashion.

The answer to this difficulty lies in the principle underlying the presumption against retrospective operation and the similar but rather narrower presumption against interference with vested interests. These are established presumptions but they are vague and imprecise.

The key point is that the House of Lords recognised (and the MHRB failed to recognise) that the presumption against retrospectivity is not a blanket rule but rather a rule to achieve a nuanced (or vague) purpose. Where that purpose – of preventing unfairness to people when the rules are suddenly changed -isn’t served (Lord Nicholls gave the significant example of post-commencement criminal prosecutions in relation to pre-commencement conduct where the rules shift in favour of the defendant), then retrospectivity is fine. The major sticking point is where legal rights have already ‘vested’ before the rules changed. This is what occurred in Wilson, where Ms Wilson got the benefit of a consumer protection law that voided a dodgy loan she signed purely because the lender had filled in the form wrong, leaving her with a free car and no debt; it would have been wrong, the Lords held, to re-interpret the law as having a less draconian impact on the lender’s contract, as that would have disturbed her rights under that law, which vested the moment the contract (briefly) came into existence.

By contrast, in the MHRB case, there are no vested rights or interests. The CTO was either valid or it wasn’t; it would be bizarre for the MHRB or the psychiatrist to say that they had a vested interest in that. Notably, the respondent was suing the MHRB or his psychiatrist for their conduct in making him take medicine for the last couple of years; he just wants out of his CTO now.

In fact, I think the House of Lords approach is so sensible that I’ve recently argued in the July LIJ that Charter s. 49(2) – which woefully excludes the Charter from proceedings started before 2007, not only retrospectively but prospectively – ought to be re-interpreted in light of Charter s. 32 so that it only excludes that operation in the circumstances set out by the House of Lords in Wilson. (More on that argument another time.) The silliness of the MHRB’s (and Attorney-General’s) approach is that it would exclude the retrospective operation of the Charter even in cases where Charter s. 49(2) doesn’t apply, effectively confining the impact of Charter s. 49(2) to its indefensible prospective effect. Crazy.

I’d argue the exact opposite:  in situations not covered by Charter s. 49(2) – that is, in proceedings commenced after 1/1/7 – the interpretation mandate should be fully operational to all events dealt with in the proceedings, no matter when they occurred. Here’s why:

The key point to remember is that Charter s. 32 is an interpretation provision. Laws aren’t being rewritten, just re-read. Such re-readings happen every day in the courts and they always apply retrospectively, indeed to the very litigants before the court. For example, in Wilson, the original court held that the lender filled in the loan correctly; it was the Court of Appeal’s re-reading of the statute (using common law interpretation rules) that suddenly left Wilson with a free car. Courts even routinely re-read criminal law provisions with retrospective effect, suddenly changing the definition of a crime long after the trial, let alone the alleged crime. And such retrospective changes are a common occurrence when the courts develop the common law, for example in 1997 when the High Court adopted a new much narrower definition of self-defence, which suddenly became applicable to the hapless defendant before them. While I have some human rights concerns about such developments now that we have a Charter, I think it’s clear that the common law presumption against retrospectivity has no application to mere interpretative changes, and hence shouldn’t touch mere interpretative provisions.

To the contrary, it is surely quite strange for Charter s. 32 – or any other interpretation provision – to be interpreted as prospective only, as that would mean that Victorian statutes now have potentially two distinct meanings: one for events prior to 1/1/8 and one for events after. It’s far from clear that Parliament would intend that effect. Now, it’s true that the House of Lords considered this issue (and others arising from the limited operation of the UKHRA) in 2007 in R (on the application of Hurst)  v. Commissioner of Police of the Metropolis [2007] UKHL 13 and was sanguine about this sort of split operation (in another era, I’d  say ‘schizophrenic’, but that seems especially inappropriate in the context of the MHRB case!), but the Lords justified that by reference to the similar approach of the ECtHR to this sort of issue (because the ECtHR isn’t interested in the meaning of statutes at all, but rather in their particular application in the cases that come to them.) As Evans and Evans perceptively point out in their book, such reasoning would not seem so apt in Victoria, where courts routinely make findings about the meaning of statutes that are intended to apply beyond the matter before them.

Some counter-arguments: (a) What about human rights, such as the rights against retrospective criminal laws? Well, I think that those concerns are comprehensively dealt with by Charter s. 32 itself, which is limited to re-interpretations that are compatible with human rights. So, for example, a retrospective expansion of a criminal provision (e.g. because it is inappropriately narrow) would presumably be impossible under Charter s. 32. Indeed, some judgments in Hurst suggested that retrospective effect is a right-by-right proposition.

(b) What about Wilson? Well, the UKHRA’s only transitional provision is one that provides for the Act’s retrospective operation in a particular class of proceedings: those commenced by public authorities. Given that provision, it’s clear that the rest of the UKHRA couldn’t be given a fully retrospective operation, as that would render the transitional provision worthless. By contrast, the Charter’s transitional provision excludes its retrospective operation for some proceedings, so, if anything, that would seem to suggest that otherwise the Charter is fully retrospective.

(c) What about other human rights jurisidctions, like Canada, which have also eschewed retrospective effect? But Canada – and other similar constitutional human rights laws – go much much further than Victoria’s, in that contrary laws are invalid, which does rewrite, rather than just reread, the law. Indeed, that’s also another ground for distinguishing the UK HRA, whose interpretation mandate reads:

3(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Rather the closest analogy to the Charter would be the NZBoRA or ACTHRA – which each have run-of-the-mill interpretation mandates – but neither seems to have attracted any major rulings on retrospectivity, despite both lacking any transitional provisions. Lucky bastards.

(d) What about Charter s. 49? Well, that backs up my approach. The apparent purpose of Charter ss. 49(2) is to prevent any unfairness to people who commenced litigation before the Part 2 human rights became part of Victoria’s law. By contrast, anyone who commenced litigation after 1/1/7 had obvious notice of the relevant rights.  So, Charter s. 49(2) can be seen as a statutory version of the common law presumptions. I’d argue that it can also be read as rebutting those presumptions in other cases. 

(e) But what about the fact that the interpretation mandate doesn’t kick in until 1/1/8? I have to concede this oddity to my approach. If litigation was commenced in early 2007 and concluded speedily before 1/1/8, then Charter s. 32 wouldn’t apply. It’s hard to get around that weirdness, which seems to be the product a the drafters’ failure to properly think through their decision to postpone the commencement of the interpretation mandate for a year. One solution might be to narrow my approach slightly by still allowing the presumption against interference in ongoing proceedings to operate. It should be noted that this is narrower than Charter s. 49(2), as it is largely limited to actual hearings that straddle 1/1/8. There won’t be many of those.

(f) Doesn’t my approach cause unfairness to people who planned their conduct before 1/1/7, but only went to court (or were taken to court) after 1/1/7? Again, I have to concede that fairness to litigants from being able to plan their litigation after it commences doesn’t necessarily flow through to the parties’ ability to plan their conduct before 1/1/7, possibly well before. But the nuances of interpreting statutes always raise that problem; remember, all that has changed is the interpretation rule, not the statutes themselves. One solution may be to temper the retrospective operation of Charter s. 32 where it would operate to change a previously clearly settled interpretation that was brought down before the conduct in question. That’s still narrower than Wilson, which applied even though the previous interpretation wasn’t clear at all.

(g) Isn’t the MHRB approach – no retrospective effect at all – simpler? No. Even the MHRB accepted that it’s ‘no pre-1/1/8 operation whatsoever’ approach:

…does not automatically mean that the Charter may not be relevant as, if [the respondent’s lawyer’s] argument were to be accepted that the Board ought to have relisted the 2007 hearing for completion at some time (after 1 January 2008 and) prior to February 2008, then the compatibility of its administrative actions with [the respondent’s] Charter rights may be considered. Further, in respect of his argument that the prior CTO became arbitrary at some point in time (after 1 January 2008 and) prior to its extension on 17 January 2008, the s32 interpretation provision may be applied in appropriate circumstances.

In Canada, which took the same narrow approach as the MHRB, the courts have had all manner of trouble applying it. So the A-G can’t be excused as simply seeking the most straightforward rule!

Oh well. Given the stance the Attorney-General took (and the MHRB accepted) in this case, I guess my approach has Buckley’s. Fortunately, as the MHRB noted, the Charter issues in its case survived even the toughest retrospectivity analysis (thanks to the non-application of Charter s. 49(2)). So, next, I’ll look at the actual interpretation issue in that case. It’s also pretty tricky!

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