The Charter vs discrimination exemptions

Ever since the enactment of the Charter, Victoria has had two anti-discrimination laws. There’s this one:

8(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

And there’s also the Equal Opportunity Act 1995. They share a common definition of ‘discrimination’, but what else do they have in common? This question is the subject of two reviews of the EOA, one of its basic structure, the other of its exemptions. Of the exemptions, there are a slew of particular ones (like the sex and age exceptions to the rule against discrimination in sport) but also one general one:

83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…..

Late last year, businesses involved in defence contracting gained renewals of their exemptions from the ban on nationality discrimination, on the basis of the need to comply with US regulations barring contractors who receive some information from giving it to people of other nationalities (including, as it turns out, people with dual nationalities.) The timing for these three-year exemptions – weeks before the full operation of the Charter – was interesting. Judge Harbison certainly noticed it:

I have advised the Applicants that on the next occasion that an application for exemption is made, the provisions of the Victorian Charter of Human Rights and Responsibilities Act 2006 will be operative. By reason of this Act, the Tribunal in considering any further exemption application, will be required to interpret the relevant provisions of the Equal Opportunity Act in a way that is compatible with human rights, as those rights are defined in the Charter. International law and the judgments of domestic, foreign and international Courts and Tribunals relevant to a human right may all be considered when interpreting a statutory provision.

But what difference will the interpretation mandate make? Well, according to a decision that just came down from the ACT’s equivalent to VCAT, nothing.

In Raytheon Australia Pty Ltd v ACT Human Rights Commission [2008] ACTAAT 19, the AAT followed other Australian tribunals and courts in ruling that the US’s policy of discriminating on the basis of nationality was a sufficient reason to permit Canberran contractors to follow the same policy. It’s hard to feel enthusiastic about this example of a ‘the customer is always right’ approach, but there does seem to be some credibility in the contractors’ claims that Australia is too unimportant to get the world’s only superpower to change its nasty ways and that continuing to engage with the US on defence matters is important to both the country and to local economies like Canberra’s. But is this grim reasoning permitted in the ACT, especially now that it has adopted an interpretation mandate that is identical to Victoria’s?

The relevant ACT provision is in similar terms to Victoria’s:

109(1) The HRC may, on written application, exempt the applicant in writing from the operation of a specified provision of part 3, part 5 or part 7.

The ACT Human Rights Commission (which had itself rejected the request for an exemption) argued that this section should, in light of the ACT’s interpetation mandate, ‘be re-interpreted in a manner that required the discretion to only be exercised in a way that was compliant with’ the rights promoted by the ACTHRA. Now, just looking at s109(1), I think it’s quite a strain to call this ‘interpretation’. It is, instead, writing, via the addition of new words. While UK courts have been quite happy to do this sort of interpretation under s. 3 of the UKHRA, it is worth noting (again) that the UKHRA’s interptation mandate requires courts not only to ‘read’ but also to ‘give effect to’ statutory provisions compatibly with human rights. I’d be quite hesitant about applying that approach under the Victorian or ACT interpretation mandates (but my view here is unlikely to be a popular one.)

But the HRC’s argument gets a lot more force from a further provision of the ACT Discrimination Act that isn’t mirrored in Victoria:

109(3) In the exercise of a power under subsection (1) or subsection (2), the matters to which the HRC must have regard include the following matters: (a) the need to promote an acceptance of, and compliance with, this Act; (b) the desirability, if relevant, of certain discriminatory actions being permitted for the purpose of redressing the effects of past discrimination.

Now, this does look like a much better hook for interpretation, as there do seem to be two readings of this section. One is a literal reading, which limits its effect to requiring that certain matters are considered. The alternative is a less literal reading, which reads its effect as giving priority – maybe even exclusive priority – to those considerations, in contrast, say, to the national interest and economic interest arguments relied upon by Raytheon. Arguably, the interpretation mandate requires that the latter reading be preferred.

But I think President Michael Peedom of the ACTAAT correctly identified two reasons why this re-reading isn’t required:

First, he found that the ACTHRA’s equivalent to Charter s. 7(2) (newly modified to be nearly identical) authorised the more literal reading. He was dubious that economic interests would satisfy the test of demonstably justified limits on rights, but felt that the defence interests would. Implicitly, he applied the New Zealand Supreme Court’s approach in Hansen v The Queen [2007] NZSC 7, of regarding the interpretation mandate as only operating on statutes whose non-mandate reading fails the reasonable limits test. As I’ve recently noted, I think that’s a logical reading of statutory human rights legislation that incorporates a reasonable limits test, although I have some qualms about some instances of this approach. (This ruling would also rule out an imcompatibility declaration about s. 109.)

Second, and more importantly, Peedom also found that the purpose of s. 109(1) is to allow a broad discretion for granting exemptions, rather than the more confined one that focussed largely on the factors in s109(3). And, if that’s right, then that’s a fatal problem for the HRC’s argument, because the ACT’s interpretation mandate, like the Charter’s, is subject to a constraint that any reinterpretation must be consistent with the purpose of the statute in question. This is another crucial difference from the UK approach.

Now, I have no view on whether Peedom reached the right answers here, either on the merits of Raytheon’s case for an exemption, or the reasonableness of a broadly based exemption, or the purpose of s109. But what I do think is that Peedom asked exactly the right questions. And that’s a good thing, notably in comparison to Victorian Charter cases on the interpretation mandate to date. What will be interesting is whether this decision will have an influence on the coming review of Victoria’s EOA.

There’s one wild card, however, when it comes to applying this case in Victoria. The ACT’s conduct mandate has not yet come into operation, whereas Victoria’s has been in place since 1/1/8.  I think the HRC’s argument about the exemption discretion being limited to rights-compatible decisions will have a lot more force if it is framed, not as an interpretation argument, but rather as an argument about the conduct of the decision-maker (VCAT in Victoria’s case.) Nevertheless, briefly, this argument would also face push-back from two limitations in the Charter: s4(1)(j) (exempting non-adminstrative functions of tribunals from the conduct mandate) and s38(2) (a defence for conduct that could not be reasonably avoided given a non-Charter law, such as s83(1) of the EOA.) Interestingly, both of these provisions are quite different in the ACT (where tribunals have no exemption [BELATED EDIT: Unfortunately, it turns out they do] and the statutory defence follows the different UK model.) So, maybe Peedom should have issued a similar warning to the one Harbison gave: things might be different next time the defence contractors come knocking.

2 thoughts on “The Charter vs discrimination exemptions

  1. You’ve said at various times that the ‘give effect’ language of the UKHRA interpretation mandate makes its scope broader than the Charter version. The former, you say, opens the door to rewriting the law whereas the latter, constrained by the ‘consistently with the purpose’ qualification, only permits a rereading.

    In a nutshell, I don’t get it. How does a requirement to ‘give effect’ amount to a license to rewrite the law? Surely to ‘read and give effect’ simply means to ‘interpret’: if a law is interpreted to mean X, doesn’t it follow that the law must then be given effect as X? Interestingly, during the passage of the UK HRB, the Tories proposed replacing ‘read and given effect’ with ‘interpreted’, but subsequently withdrew the amendment, presumably on being satisfied that there was no material difference between the two terms.

    Admittedly, there was some discussion about the meaning of the phrase in some of the early commentary on s3(1) UKHRA. But in the main hasn’t the focus on s3’s so-called mandate to rewrite laws turned on its ‘what is possible’ language? Language that is matched in the Charter, ACTHRA and NZBoRA.

    The idea that s3 UKHRA stands separate from other interpretation mandates because it is somehow worded differently is I think unfortunate, not to mention a somewhat in-credible way of distinguishing UK precedent. Doubtless, the loudest proponent of that view is the House of Lords itself (a view, it is worth noting, the NZSC in Hansen was at pains to reject).

    You’ve also suggested that the “closest analogy to the Charter would be the NZBoRA or ACTHRA – which each have run-of-the-mill interpretation mandates”. But outside the ‘what is possible’ qualification’, NZBoRA like UKHRA makes no explicit link to legislative intent. Only the Charter and ACTHRA expressly refer to purpose (which I would argue serves to clarify the formula adopted in UKHRA (and NZBoRA), not depart from it). And even there, ACTHRA can arguably be said to have the more restrictive ‘purpose’ qualification, thanks to s139 of the Legislation Act, which requires an interpretation that ‘best achieves’ the purpose to be preferred, something Vic does not have.

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