Maxwell & Weinberg’s Charter dodge

It’ll take me three posts (I think) to cover the fizzer that was R J E v Secretary to the Department of Justice [2008] VSCA 265. This post is concerned with the majority’s decision not to ‘apply’ the Charter when ruling on the meaning of this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005 (SSOMA):

11(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

All three judges on the Court of Appeal overturned a previous decision from 2006 that held that likely didn’t mean ‘more probable than not’, instead holding that that’s exactly what it meant.

But Court of Appeal President Chris Maxwell and carpetbagger Mark Weinberg made those findings without reference to the Charter’s interpretation mandate:

As we have said, our conclusion about the meaning of the word ‘likely’ in s 11(1) is arrived at by the application of ordinary principles of statutory interpretation, in particular the common law rule favouring that interpretation which least encroaches on individual freedom. That choice of meanings having been resolved, the interpretive task does not attract the operation of s 32(1) of the Charter, which provides:

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

In view of that conclusion, there is no occasion to consider further the question – debated at some length on the appeal – of the correct methodology to be applied where s 32(1) is applicable. While that is undoubtedly a question of real significance following the advent of the Charter, it is not appropriate that we decide that question when it is unnecessary to do so. The correct result is more likely to be arrived at in a case where the choice to be made is of practical consequence, that is, where the court is able to assess the different results which might be produced by the competing approaches.

This is a dodge and a highly controversial one on a number of levels.

First, the proposition that it’s better to hold off choosing between competing methodologies until they make a practical difference is debatable. Antipathy to this sort of thing is common amongst anti-‘activist’ judges (e.g. Dyson Heydon’s love letter to John Howard before his appointment to the High Court, not that he kept his word.) But this practice has previously been known by the friendlier term ‘obiter dicta’ and is part of a venerable tradition of legal development by the courts, on the basis that it is often worth getting the principles right before practical differences start to emerge, rather than long after. The mess that is Charter jurisprudence to date is testament for the benefits of a little ‘early’ guidance from above. Moreover, the claim that it’s better to make the decision in a case ‘where the court is able to assess the different results’ is itself a controversial one, suggesting that choices of methodology are inevitably ‘result-driven’. The alternative view is that such ‘hard cases make bad law’. Anyway, if Maxwell and Weinberg really believed in Heydon’s claptrap, then they wouldn’t have resolved a new meaning for ‘likely’ at all, as, according to them, RJE’s order was bad on any test. 

Second, despite their claim not to be choosing between the ‘competing approaches’, Maxwell & Weinberg’s judgment actually made a choice on one issue: their reasoning in this case clearly draws a distinction between ‘ordinary’ statutory interpretation and Charter statutory interpretation, with the latter playing a fall-back role, apparently only applying if there is a further ‘choice of meanings’ available. There’s four problems with that. One is whether or not this two-step approach is consistent with Parliament’s intention in creating a human rights culture, where (presumably) those rights are front-and-centre of the law-making involved in interpretation. Another is that their choice takes at least a step towards resolving the controversial Hansen debate (that the court claimed it wasn’t resolving), as the majority Hansen view depends on drawing a distinction between ordinary and Charter principles of interpretation.   A third  is that it’s not clear that the ‘choice of meanings’ has been fully explored (as the Briginshaw principle certainly contemplates a beefed-up ‘balance of probabilities’ standard when big issues are at stake.) And a fourth is that the judges completely failed to consider the (admittedly controversial) possibility that the Charter might require a lower threshold than ‘more likely than not’,  because of the competing rights of potential victims of child sexual offenders. (More on that in another post.) 

Third, there’s the (sole) issue that divided the Court: whether it’s proper for Victoria to differ from an authoritative ruling of the NSW Court of Appeal on an identical statutory formulation in a similar (but not identical) scheme, simply because it thinks that view is wrong. The binding authority on this issue of comity is, alas, a recent High Court judgment from Heydon’s poison pen. In the course of slapping down the NSW Court of Appeal for daring to think outside the box on some equity issue, Heydon wrote:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.  Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.

Maxwell & Weinberg argued (relying on a more recent High Court backtrack, building on its ‘it’s the words, stupid’ shtick) that comity doesn’t apply to state legislation. But that’s a dodgy argument on two grounds: (1) the NSW legislation doesn’t just happen to be the same as Victoria’s; it was copied from it. (The ‘high degree of probability that the offender is likely’ formulation is too stupid to have been thought up twice.) (2) the NSW decision in question followed an earlier Victorian decision in the name of comity. Not only does that mean that Victoria’s new take on comity is at odds with NSW’s (itself a breach of comity), but it also will now put NSW in an embarrassing position of having to now rethink it’s own ruling (because the comity it was founded on no longer exists.) I reckon there’re are going to be a lot of grumpy looks south towards the Murray, especially at recent emigrant Weinberg.

Maxwell & Weinberg’s fall-back argument was that the NSW case is a dodgy instrument for comity, because it was itself an exercise in comity (and a very reluctant one at that) and that, but for comity, the NSW court would have opted for the approach that Victoria will now take. This is the ‘comity of errors’ I referred to in a previous post, and it’s certainly a good example of what’s wrong with the High Court’s comity fettish. But, as Nettle pointed out, the NSW court, when choosing between comity and its own preference, opted for comity precisely because it thought that the earlier Victorian view was a ‘respectable one’, and it made that decision in full awareness of the various flaws in the older Victorian case. So, the majority’s fall-back argument is yet another blow against comity, consisting of the Victorian Court of Appeal disagreeing with the NSW Court of Appeal on whether an earlier Victorian approach was ‘respectable’. For that matter, it also differs with the NZ Court of Appeal, which also interpreted ‘likely’ in its (quite similar) legislation to mean something less than ‘more likely than not.’ I guess comity isn’t trans-Tasman. A bit rude, though.

And there’s a third problem with the majority’s approach: the Court of Appeal’s willingness to depart from one of its own rulings. This issue was actually ruled on the day before RJE came out, in a five-judge decision on an obscure sentencing law issue. There, the majority departed from an earlier three-judge decision on the ground that it was plainly wrong (a finding that the Court of Appeal in RJE made about the earlier Victorian decision on s11, and for good reason too.) But one judge in that decision said that it was wrong to depart from the earlier decision (even in a five-judge bench gathered for just that purpose), arguing that the earlier decision was recent and carefully considered, that the majority was too quick to find that it was ‘plainly wrong’ and that, if the legislature had thought the earlier decision was wrong, it could have fixed it. And who was that judge? Why, Weinberg JA. Maybe he should work on a bit of auto-comity.

The significance of this bewildering debate is that, instead of the majority’s tortured reasoning on comity, the Charter provides a perfect, legally uncontroversial way out. The interpretation mandate has ended ALL arguments about comity between Victorian decisions on legislation and inter-state (and past) decisions on similar legislation anywhere else in Australia (except the ACT.) We simply don’t have the same statutes anymore, even if they look identical. For the same reason, precedents on the meaning of legislation, even recent, carefully considered ones, are just obiter now. A court – even a single judge, even a magistrate, even a VCAT member – is now not only allowed but required to depart from earlier precedents if the Charter demands it, thanks to the interpretation mandate. 

By contrast, thanks to Maxwell and Weinberg’s refusal to apply the Charter, they have not only failed to provide guidance on the Charter, but their very ruling on s11 may be transient. What if a NSW sex offender, monitored or detained according to the test that previously applied in Victoria, appealed to the High Court? And what if the High Court dismissed the appeal and endorsed the current NSW law? Where would that leave RJE, which is just a decision about ordinary statutory interpration of a provision that has the same wording as NSW’s, and whose reasoning didn’t draw any distinction with the NSW jurisprudence? Alternatively, what if the Secretary or the Attorney-General appeal RJE itself to the High Court and the High Court disagrees with Maxwell and Weinberg on ordinary interpretation? Will the High Court have to then apply the interpretation mandate without any guidanc from the Court of Appeal? I’m pretty sure there’re some High Court authorities complaining about that sort of thing. None of these things are unlikely scenarios.

And that’s why it’s obvious to me that Maxwell and Weinberg didn’t just find it unnecessary to apply the Charter and that, rather, they dodged applying it. There was simply no reason for them not to apply the Charter in this case, and every reason for them to do so (as Nettle rightly held.) So, you have to speculate why they didn’t do it. My argument for this is clearly on the record: the current application of the Charter is being completely dominated by a fear of bad publicity (such as the Hun headlines I wrongly predicted a few days back), and RJE is a classic example of a very unpopular rights claimant. But  RJE, the decision, not the man, is an instance of the cost of that craven and political approach: any meaningful guidance on some fundamental features of the Charter has now been put off for yet another rainy day when a more presentable claimant emerges. You have to wonder whether that guidance will ever come.

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