Lost in transition

On October 3rd, Carolyn Evans spoke at the annual ‘Protecting Human Rights’ conference about the Charter litigation to date and pointed out Victorian judges’ and tribunal members’ troubling inability to get a simple date right when reading Charter s. 49(2), a matter that this blog has given a lot of attention. The day before, the Charter’s appalling transitional provision was being debated in the Supreme Court, in a hearing enhanced by the Attorney-General’s intervention. And, just one week later, another misreading for Evans’s list, in Devine & Legg v VCAT [2008] VSC 410.

Readers of this blog will know Charter s. 49(2) by heart:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

And here’s what Justice David Beach had to say about the application of the Charter:

The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter. This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini and DPP v TY (No.3) as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”. Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic, the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.

This is, for what it’s worth, a new wrinkle in the sad history of misreadings of Charter s. 49(2): instead of simply wrongly assuming that Part 2 commenced the same time as Divisions 3 and 4 of Part 3, Beach just replaces the words ‘Part 2′ with “Division 3 of Part 3’. The result is the same: the reach of the Charter’s appalling transitional provision for proceedings is extended by a year. It’s true that, unfortunately, Devine & Legg (or, more precisely, Victoria Legal Aid) apparently joined in the error. But why on earth didn’t Beach listen to the Attorney-General, who intervened as of right in the proceedings under Charter s. 35 just so the Supreme Court wouldn’t be misled by bad lawyering?

Now, some people will say that Beach J still got the right result. After all, didn’t the VCAT proceedings over racial vilification commence in 2005? Well, they did, but that wasn’t the matter before Beach. Continue reading

VCAT vs Charter s. 49

Of the four potential Charter cases that came out this week, just one is now available online: the VCAT decision, BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799. As I guessed, this is an application by a defence contractor for an exemption from the Equal Opportunity Act‘s ban on nationality discrimination in employment, to fit in with the US’s discriminatory approach to security. VCAT Deputy President Cate McKenzie didn’t much like the US’s policy:

[A]lthough this comment is unlikely to influence the framing of the Australian and US security requirements, I would have thought that the use of nationality-based measures to prevent unauthorised access to information or material is a blunt and imperfect instrument. Assessment of individuals on a non-stereotyped basis, or training and education about the importance of the obligation of secrecy, would seem to me to be a better approach.

No kidding. But, just like every other decision that’s ever been made on this issue, McKenzie granted the exemption (albeit with more conditions than BAE wanted.) South Australia’s Equal Opportunity Tribunal granted BAE an exemption last year, so VCAT’s exemption saved 180 employees at BAE’s Abbotsford digs from having to move to Adelaide! Discrimination was obviously the lesser of two evils. Alas, McKenzie, in passing, engaged in some Charter analysis of unprecedented lousiness.

As I previously noted, VCAT had granted a number of similar exemptions last year, accompanied by warnings that, next time, the Charter may change things, with the Charter’s interpretation mandate becoming operational at the start of this year. In the ACT, where a brand new interpretation mandate identical to the Charter’s kicked in on 18th March this year, its equivalent to VCAT has already considered whether its approach to exemptions was compatible with human rights. (It decided that it was.) But, amazingly, McKenzie held that the Charter’s interpretation mandate, which was in place for two-and-a-half months before the ACT’s, didn’t apply to BAE’s application!

Alas, McKenzie was helped to this conclusion by VEOHRC. This is what Victoria’s defender of both equal opportunity and human rights (and typically the only opponent to applications for exemption) had to say in relation to BAE’s application:

Apart from submissions by BAE, the only other submission received was a letter from the Commission noting that the Victorian Charter of Human Rights and Responsibilities (the Charter) did not apply to this proceeding and also that, if VCAT granted the exemption subject to conditions involving reporting to the Commission, the Commission would be willing to accept this role.

Although we aren’t told, it sounds like VEOHRC is relying on the Charter’s transitional provision for proceedings:

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

Part 2 commenced on 1 January 2007. So, when did BAE’s proceeding commence?:

On 24 December 2007 BAE applied to VCAT for exemption under s83 of the EO Act.

Oh no. Oh god no. Not again. Please not again. So now VEOHRC can’t read a statute either. I blame our lousy law schools…

Fortunately, Deputy President McKenzie has the apparently rare ability to get a simple date right:

The explanatory memorandum for the Bill which eventually became the Charter explains that s2 was intended as a staggered commencement provision, in order to allow government to review existing laws, policies and procedures for Charter compliance. Among other things, it says that s 49 provides that the Charter ‘does not apply to legal proceedings commenced before 1 January 2008’ and that the Charter ‘may not be relied on in proceedings commenced before that date’. It explains that s49(3) means that ‘the obligations upon public authorities in the Charter to do not apply to an act or decision made before 1 January 2008’. There is a difficulty with s49(2). It provides that the Charter does not apply to proceedings commenced or concluded before the commencement of Part 2. That part commenced on 1 January 2007, not 1 January 2008. But s2 directly provides that Division 3 of Part 3 (the division in which the obligation to interpret statutes in a rights-compatible way appears) commences on 1 January 2008.

In the light of the explanatory memorandum, I suspect that the reference to the commencement of Part 2 in s49(2) is an error. However, the wording is clear and I am not prepared to say that the result is so absurd that Parliament could never have intended it. After all, the bulk of the Charter commenced on 1 January 2007. If s49(2) contains an error, it is an error that will need to be corrected by Parliament. In my view, s49(2) does not apply to this proceeding, because this proceeding was commenced after the commencement of Part 2, that is after 1 January 2007

Thank god. She’s completely right about all of that. Alas, despite that second-last sentence, she still ‘corrected’ Parliament’s error with her own woeful approach to retrospectivity: Continue reading

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: Continue reading