Charter s. 35 in practice

I’ve just noticed that, ten days ago, the Supreme Court issued a practice note on the operation of Charter s. 35:

35(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if- (a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) in any case, a question is referred to the Supreme Court under section 33.

The note is exclusively concerned with timing issues, which Charter s. 35 is silent on. The note notes:

Neither the Charter nor the Regulations set out specific requirements as to when notice is to be given or when the Attorney-General and the Commission are to indicate whether they intend to intervene in a proceeding. The Court is concerned to ensure that, where required, parties comply with section 35 at the earliest opportunity to avoid delays and the wastage of costs which could occur as a result of late compliance. The Court’s expectations of practitioners in this regard are set out below.

Actually, Charter s. 35 doesn’t set out any consequences of late or non-compliance at all and it seems to me that some consideration should be given to the possibility that there are no consequences. While I imagine there’s a strong argument that the purpose of Charter s. 35 is to facilitate the intervention powers in Charter ss. 34 and 41 given respectively to the A-G and VEOHRC, isn’t there a strong counter-argument that creating barriers to the ad hoc raising of the Charter’s interpretative and conduct mandates as a routine matter in litigation is at odds with the human rights culture the Charter is supposed to foster? (My fears here are heightened by unfortunate examples where Charter s. 35 has resulted in the dropping of otherwise quite plausible Charter arguments.) Drawing an analogy between Charter s. 35 and s. 78B of the Judiciary Act (which requires notice to every A-G in the continent on constitutional matters) isn’t apt: the Constitution’s subject-matter is much narrower than the Charter and its legal effect (including invalidity of legislation) is much broader. (Alas, the Court of Appeal has no qualms about using s. 78B to block Charter arguments, even in urgent matters.) For what it’s worth, the note observe that:

Whether service of a notice in close proximity to a hearing or trial necessitates an adjournment will be a matter for the Judge or Master hearing the proceeding.

On the question of timing, the note lays down the following ‘expectations of practitioners’, with non-compliance to ‘be taken into account, where relevant, in relation to the question of costs’:

First, the note notes that the A-G and VEOHRC say that their ‘expected response time’ is 14 days. There’s no further commentary, so the implication is that the Court either backs that estimate or feels that it has to defer to it. I’m no practitioner, so I can’t judge whether or not a fortnight is a reasonable response time and whether or not litigants can reasonably be expected to pick up and formulate their Charter arguments that distance from a trial.

Second, the note also requires that the court and other parties be given the notice at the same time, even though that requirement isn’t in Charter s. 35. This is to ‘ensure that it and other parties to proceedings are informed in a timely fashion of Charter issues arising in a proceeding’. It’s not clear to me why a special rule is needed beyond the usual ones that allow parties to be informed of each others’ arguments. (My bleary memories of civil procedure touch on the word ‘pleadings’.) And why is the Court so keen to know in advance whether or not there’s a Charter issue looming? Aren’t all the judges on top of the statute by now?

But there’s more:Third, practitioners are also expected to consider whether or not the Charter will come up at the commencement of any proceeding and to inform the Court about that at the first directions hearing. Again, a tough rule for a statute that can come up in so many ways. I guess practitioners will be forgiven if they say that, despite considering the Charter from the get-go, they only realised that there was a Charter issue later on.

Fourth, appeal proceedings need a Charter s. 35 notice, even if there was one in the hearing below. Why? Won’t someone think of the trees? [EDIT: OK, I can see the point if no-one intervened in the hearing below. But if they did?]

Fifth, in the event of something coming up later, comply with Charter s. 35 ‘without delay and no later than 7 days after’. Ah, the lawyers’ version of ‘without delay’. Then seek directions on whether there has to be an adjournment. Sub-text: don’t raise the Charter late unless you really really have to and you can cop an adjournment (and, perhaps, an adverse costs order.)

Sixth, what about urgent matters, a matter that was the subject of urgent criticism by Bongiorno J back in March?:

[A]ny attempt at reliance on the Charter would necessarily require compliance with s 35(1)(a), which concerns the giving of notice to the Attorney-General and the Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter. Compliance with this provision would, of necessity, involve delay – perhaps considerable delay – which in the context of an application such as this would be at least inconvenient and perhaps even intolerable.

Section 35 of the Charter contains no severance provision, nor does it contain any urgency exception such as are found in s 78B of the Judiciary Act 1903 (C’th). These are major impediments to the smooth operation of the Charter which need the urgent attention of the Legislature. The section needs to preserve a residual discretion in the judge to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason. This is, for obvious reasons, particularly important in criminal proceedings. Without such a power there is a real danger that the notice provisions of the Charter will be used to delay or even disrupt the orderly conduct of criminal trials.

The Court doesn’t address the correctness of Bongiorno J’s assumptions that there must be an adjournment even in urgent matters. It simply states the bleeding obvious: everyone should act urgently. (Well, everyone except the Court.)

Finally, the Court addresses Charter s. 35(2):

35(2) For the purpose of subsection (1), a notice is not required to be given to- (a) the Attorney-General if the State is a party to the relevant proceeding; or (b) the Commission if the Commission is a party to the relevant proceeding.

Despite s. 35(2)(a), the Court says that it may ‘nevertheless be prudent’ to inform the A-G of Charter issues to ‘reduce the risk of delay resulting from a late intervention.’ I find it hard to conceive of a court delaying a proceeding purely because one hand of the state didn’t know what the other was doing. Although this bit of the note is worded differently to the rest, it could be read as a command and a warning, rather than as friendly advice. I’m not sure why the court’s advice isn’t directed, instead, to the state party.

No sign of a similar practice note in the County Court yet. Maybe no-one’s raising the Charter there. And maybe the Supreme Court will be the same soon.

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