The Charter vs Parliament

nzeditorialOne of the core principles of the Charter is that it doesn’t affect Parliament’s powers. Those powers are preserved by the limited nature of the Charter’s operative provisions (limited to interpretation, and excluding the non-administrative capacities of parliament from the oblgiations mandate.) They are also made clear in three express savings provisions:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

32(3) This section does not affect the validity of- (a) an Act or provision of an Act that is incompatible with a human right; or (b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

But could the Charter still be raised in court in an action against Parliament?

Petra Butler recently gave a talk at Melbourne Law School about just such an action in New Zealand. The recently booted-out Labour government caused a lot of controversy by passing a new Electoral Finance Act late last year. (See the pictured front-page editorial in the NZ Herald, featuring a gagged man, which was later the subject of a successful press council complaint.) An article in the latest issue of the Public Law Review outlines a number of concerns about the statute, notably its quite extreme limits on third-party advertising. Indeed, incoming PM Key has earlier announced that repealing the Act will be his first move upon his election. For NZBoRA groupies, a further controversy is how the NZ Attorney-General Michael Cullen fulfilled the following obligation under the NZBoRA:

7 Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Cullent didn’t report. In accordance with the usual (and excellent) NZ practice, the legal advice he received on the issue is published, complete with the names of the advising lawyers: Val Sim, Crown Counsel and (a name now familiar to Charter groupies) Joanna Davidson, as peer reviewer. The advice described the freedom of expression views as ‘finely balanced’ but deferred to Parliament’s ‘wide margin of appreciation’. Andrew Geddis, in the PLR, casts this ‘vet’ as ‘overly deferential to the government’s policy preferences’. 

Somewhat astonishingly, an action was commenced in New Zealand’s High Court seeking a declaration that the Attorney-General was in breach of s7 of NZBoRA. The action was commenced before the Bill was passed, but the High Court declined the request for urgency. By the time the action was heard, the Bill had passed, but declarations were sought on the basis that a declaration should be made about the past breach and that s7 required the Attorney-General to recommend the re-introduction of the bill accompanied by an appropriate s7 statement. The Attorney-General responded with a request to strike out the application as an interference with parliament and as an attempt to seek an unavailable declaration remedy on a moot point. In Boscawen v Attorney-General [2008] NZHC 949, a judge of the High Court agreed to the striking out. Denis Clifford’s key finding was that:

when the Attorney-General responds to his duty under s 7 of NZBORA and determines ­ as the case may be ­ that there are or there are not inconsistencies between a bill and the rights and freedoms contained in NZBORA, and therefore determines whether to draw or not draw such inconsistencies to the attention of the House, the Attorney-General performs a function which falls within the proceedings of Parliament. I think, therefore, that questions of the privilege, whether described in terms of non-interference in the internal proceedings of Parliament, or as questions of Article 9 [of the Bill of Rights 1689] privilege …  mean that judicial review is not available.

According to Butler, the striking out has been appealed to the NZCA, but it would be quite a surprise if it reaches a different conclusion.

The general principles cited in Boscawen are also part of Victorian law. So, would they apply to the equivalent provision of the Charter?:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

As is well known, Charter s. 28 differs from NZBoRA s7. In NZ, statements must only be made if the A-G thinks a bill is incompatible. By contrast, the Charter requires a statement for every bill. This strikes me as a potentially significant difference, because the making of a statement, as opposed to its content, is not a question of legal judgment about the human rights content of a bill.

A core of Cullens’s reasoning was based on the principle of comity:

The roles accorded to Parliament and the Courts by those provisions seem reasonably clear. NZBORA provides for scrutiny specifically by Parliament via s 7, and scrutiny by the Courts through ss 4, 5 and 6. In terms of comity and common sense… the Court would in my view therefore be unwise to exercise a power of review of s 7 actions.

This principle would be applicable to an action that Charter s. 28(3) had been breached. Imagine that a Statement of Compatibility somehow failed to do a complete or accurate analysis of the human rights compatibility of a govenrment bill. (Hopefully, such a thing would never actually happen in real life, but bear with me.) An attempt to get a court to declare that a statement of compatibility was so inadequate would be on all fours with the application rejected in Boscawen. Such an action would effectively be an attempt to get judicial review of the member’s opinion stated in an SoC. Not only would that be intruding into parliament’s own scrutiny system, but it’d also be circumventing the procedure that the Charter creates for just such a review: the declaration of inconsistent interpretation.

But it could be argued that different considerations would apply if no statement of compatibility was prepared or  issued at all. In that instance, it’s not the member’s words or opinion that is being reviewed, but rather the member’s complaince with a legal rule. Such an even occurred recently in relation to the Abortion Law Reform Bill, where there was no SoC. Of course, the government’s view was that Charter s. 48 overrode Charter s. 28, but others doubted that view, at least in relation to some clauses of the bill. This issue could arise again outside the charged context of abortion reform. For example, the government could take the view that Charter s. 48 precludes the need for a bill in relation to all bills applicalbe to criminal justice, because a criminal offence relating to abortion remains on the books. Or an opposition member may refuse to issue an SoC out of opposition to the Charter itself. As I discussed in this post, the President of the Legislative Council has ruled that he lacks any authority to rule on such a failure. But what if a court action was brought, before the bill was passed, alleging a breach of either Charter s. 28(1) or Charter s. 28(2). Doubtless, the same old parliamentary privilge arguments could be raised, but they’d have less bite, biven the absence of any review of the member’s views about compatibility or otherwise. 

Four further things to note:

First, Charter s. 29 obviously precludes any consequences for the validity, operation or enforcement of the bill itself. But that itself doesn’t preclude declarations of a breach of Charter s. 28. 

Second, weirdly, there’s no equivalent to Charter s. 29 for SARC’s obligation in Charter s. 30 to report on incompatibility. However, Charter s. 30 is closer – but not identical – to NZBoRA s7, in that it (arguably) only mandates a report in the event that SARC thinks there’s an incompatibility issue. Anyway, there’s no way that the failure of SARC to do something could affect an Act’s validity.

Third, Charter s. 36(5)(b) – barring a cause of action arising from a declaration of inconsistent interpretation – would arguably bar any court action seeking a declaration in the event that the Minister fails to fulfil his or her obligation under Charter s. 37 of reporting to parliament within six months of a declaration.

Finally, is it possible that a court could issue an injunction in the event of a failure to comply with Charter s. 28(2), barring Parliament from considering a bill that lacks an SoC? You might think not (and you’d almost certainly be right.) But, amazingly, just such an injunction was recently contemplated by South Africa’s Constitutional Court in relation to the bill abolishing the Scorpions, that country’s version of the Office of Police Integrity. South Africa has no equivalent to Charter s. 28 or NZBoRA s. 7, but one of the complaints was about the deliberative process. The plaintiffs alleged that cabinet was simply rubber-stamping the political preferences of the nation’s dominant political party. Thank god that sort of things never happens here! In Glenister v President of the Republic of South Africa  [2008] ZACC 19, the Court, without firmly decidng, was prepared to proceed on the basis that it could intervene in the legisltive process when ‘no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object’. In South Africa, this would be unusual, because invalidity is available as a post-enactment remedy. Here, there’s no invalidity remedy, though it might be argued that Charter s. 36 provides a sufficient remedy to cure a failure to comply with Charter s. 28. The Constitutional Court ultimately declined to issue the injunction, dismissing the plaintiffs’ argument that the Scorpions would have lost its personnel by the time of any invalidity declaration (and indeed was already losing it.)

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