The Charter vs. Charter s. 48

For obvious reasons, Charter s. 48 – the Charter’s savings provision for abortion and child destruction laws – is very much on my mind. Beyond bland quoting of published views, I won’t be commenting here on exactly how Charter s. 48 interacts with the Abortion Law Refom Bill 2008.

But there’s one Victorian law about abortion that the Bill leaves untouched. It’s this one:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

So, here’s a puzzle: does the Charter apply to Charter s. 48? In particular, could someone seek a declaration of inconsistent interpretation about Charter s. 48?

The phrase ‘law applicable to abortion or child destruction’ appears to cover Charter s. 48 itself. That would seem to imply that the Charter (including Charter s. 36, the declaration section) doesn’t affect Charter s. 48. But the problem is that the phrase ‘in this Charter’ surely also covers Charter s. 48, which is obviously in the Charter. That means that, by the terms of Charter s. 48, Charter s. 48 is ‘saved’ from… Charter s.48. And that means that the exemption of effects of the Charter (whatever they are) from abortion laws doesn’t extend to Charter s. 48. And that means that the Charter (including Charter s. 36) do affect Charter s. 48. But so does Charter s. 48. Which means that the Charter doesn’t affect Charter s. 48. Which means that Charter s. 48 doesn’t affect Charter s. 48. Which means that the Charter does affect Charter s. 48….

And so on. In short, Charter s. 48 basically has the following form: “This Act doesn’t apply to this section.” The dreaded self-referential law! Indeed, it’s a self-contradicting law. That’s the worst sort!! Perhaps my  double degree in theoretical maths and law will be useful at last. If only I remembered any of the maths! What is the set of all sets that don’t include themselves? (I always got that one wrong in the exam!) And where’s my copy of Gödel Escher Bach?

Um, maybe it’s best if Charter s. 48 isn‘t a law applicable to abortion or child destruction’. For example, I guess you could argue that Charter s. 48 is really a law applicable to laws applicable to abortion or child destruction, which isn’t the same thing as a law applicable to abortion, etc. So, Charter s. 48 wouldn’t be self-referential anymore. That’d be a relief! Or would it? Continue reading

An annoying argument

More bodginess! I’m more than a little baffled by a piece by Williams & McGarrity in Wednesday’s SMH. They argue that Evans v State of NSW [2008] FCFCA 130 shows the need for a federal charter of rights:

The protesters have won this round. Next time they are not likely to be so fortunate. The Federal Court decision illuminates the fragile nature of freedom of speech in Australia. The right deserves better protection than the legal presumption that Parliament does not intend to breach the right unless it sets this out in clear terms. It is long past time that such an important freedom was safeguarded in a national charter of human rights.

Now, there seem to be three things wrong with this argument:

First, we already have ‘better’ protection for free speech in Australia than the common law presumption against infringing rights: the Constitution’s freedom of political communication. True, it wasn’t tested in this case, because the Federal Court felt that they had interpreted away all of Evans’s and Pike’s problems. But, if interpretation wasn’t an option, there’s surely a good chance that the Constitutional remedy would have been available. Aside from the requirement of proving that their communication was ‘political’ – and, really, is there any doubt about that given the desire of Evans and Pike to talk about hotbed issues like same-sex marriage and state funding of religious events? – this Constitutional protection raises issues that are pretty damn similar to those under Charter s. 15(2). The big difference: the Constitution would actually invalidate the regs if they (or their head statute) couldn’t be read down. 

And that’s the second point: Continue reading

The scope of the interpretation mandate

The Charter’s two most feted (and, to date, little-used) provisions are its interpretation mandate:

32(1) 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.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

and its declaration power:

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

These provisions won’t turn Victoria’s more draconian laws into rights-friendly ones. But it may ensure that, when parliament expresses itself flexibly, unclearly, unintelligibly or thoughtlessly, the courts will have good reason to resolve the mess in a rights-friendly way. And, when the mess can’t be resolved, the courts can raise a (small) stink about it.

But when do these special rules apply? Their scope is only as wide as the term ‘statutory provision’. That’s defined in the Charter as follows:

statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument

And what’s an ‘Act’ or a ‘subordinate instrument’? These words are defined in the Interpretation of Legislation Act 1984, which self-referentially tells us:

38 In all Acts and subordinate instruments, unless the contrary intention appears-

Act means an Act passed by the Parliament of Victoria

subordinate instrument means an instrument made under an Act– (a) that is a statutory rule; or (b) that is not a statutory rule but- (i) contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or (ii) is of a legislative character…

Seems pretty wide? But it’s not as wide as the ACT, whose interpretation mandate also covers:

  • old acts of other legislatures (the UK, the Commonwealth and NSW) that were grandfathered in when the ACT got self-government
  • instruments that are not legislative in nature that are made under an Act or instrument or a power under given by any law

The former covers things like the Magna Carta while the latter covers things like search warrants. In the ACT, but not in Victoria, these things can now be re-interpreted under the new mandate.

Still, some laws that apply to Victorians will miss out. The two most obvious ones are the common law and Commonwealth statutes. In its Alert Digest No 6 of 2008, SARC picked up a third category. Continue reading

Albrechtsen’s bodgy column

It looks like the Australian isn’t going to publish a letter to the editor I wrote in relation to Janet Albrechtsen’s recent column (‘Beware the Galloping Imperialist Judiciary‘) opposing a federal charter. Here’s what I wrote:

Janet Albrechtsen (23/4) repeats a common claim of the anti-charter-of-rights movement: that Canada’s provision allowing governments to override that nation’s Charter of Rights ‘has never been used, not once since the charter was introduced more than 20 years ago.’ She needs to obtain a better pamphlet. Override clauses were applied to hundreds of Quebec statutes in the 1980s, including twelve overrides by the Charter-friendly Liberal government, as well as by the governments of Saskatchewan, Alberta and Yukon Territory, on subjects ranging from language to education, agriculture and gay marriage.

You have to wonder why opponents of a charter need to make up claims about other countries and, for that matter, why the predicted judicial dictatorship is yet to emerge in the ACT (in its fourth year of its Human Rights Act) and in Victoria (in the fourth fully operational month of its Charter.)

I’ve heard this claim about Canada’s ‘notwithstanding clause’ (which is similar to the Charter’ s override provision) before. It seems to be a misunderstanding of one of two much narrower claims: that Canada’s federal parliament has never used the clause; and that the clause has never been used in response to a court judgment. Also, these facts – and Albrechtsen’s false claim, for that matter – are not necessarily evidence of a judicial monologue; they may also be evidence of the courts deferring (rightly or wrongly) to the legislature.

To improve my chances of publication, I didn’t go into another wrong claim in Albrechtsen’s column:

The real stealth bomb in a charter of rights is the interpretation clause. Hang in there if it all sounds a bit dry. Charter advocates will hope you start tuning out right about now. Section 3 of the British Human Rights Act – more or less repeated in the Victorian Charter – says that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This is an open invitation to judges to ignore even the clearest of parliament’s intent. The House of Lords has said so, describing this innocuous little “reading down” provision as “dangerously seductive”, and “unusual and far-reaching in character”.

She’s right about Britain, but wrong about the Charter. That ‘more or less’  hides a crucial difference between s. 3 of the UK HRA and Charter s. 32(1):

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.

Now, that omission’s gotta be deliberate!

The conclusion of my letter shouldn’t be taken as meaning that I back a federal Charter (or Victoria’s for that matter.) I just don’t think much of the ‘judicial dictatorship’ argument. Continue reading

SARC criticises a constitutional amendment

The Victorian Parliament’s Scrutiny of Acts and Regulations Committee (whom I advise, but whose views aren’t mine and vice versa) has this to say about a current bill to amend the Victorian Constitution (and some other legislation) in relation to pensions of various judges and other constitutional officers:

The Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 may be incompatible with Charter s. 8(3).

Those are bold words for a bipartisan committee and only the second time such a finding has been made since the Charer commenced. Unlike the first time, there’s no apparent excuse for this discrimination. Continue reading

Parole boards released from the Charter

Late last year, the government promulgated some new regulations under the Charter, excluding all three of Victoria’s parole boards – the Adult Parole Board, the Youth Residential Board and the Youth Parole Board – from the definition of ‘public authority’ and, hence from the conduct mandate.  They would otherwise have easily been within the definition under Charter s. 4(1)(b), which covers entities established by Victorian legislation that have public functions. The exclusion (under Charter s. 4(1)(k)) operates until the end of this year.

According to the HRLRC, ‘[t]he Regulations were made to enable the Boards to undertake further activities to ensure the compliance of their policies and operations with human rights before such compliance becomes a legal obligation’.  So, apparently, the nearly eighteen months since the Charter was enacted weren’t enough to do this (even though they were enough for, say, government departments, Victoria Police, local councils and the courts, amongst many others.) This is especially odd, because the Charter’s difficult criminal process rights don’t apply to parole board decisions; they all expire on sentencing at the latest. So, instead, the parole boards only have to get up to speed on basic rights like equality, humane treatment, privacy and freedom of expression. Hardly burdensome, I would have thought. Actually, it’s the interpretation mandate that would be more stressful for them, as it potentially changes the meaning of the two acts that govern them. The regulations can’t solve that problem; that would require an override declaration.

This smacks of base politics. Either a turf fight between corrections and justice or the Brumby government trying to head off a Herald Sun beat-up that the Charter will require the release of dangerous criminals into the streets. Not a good start.