This is the last in my series of posts on the Charter’s most difficult provision:
39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
The first post considered the ambiguous origins of all the above words. The second looked at the ambiguous final eighteen words, The third turned to the first thirty six words, focusing on two ambiguous ones: ‘may seek’. This post looks at another three or so ambiguous words. And then we’re done!
To recap, Charter s. 39(1) limits what courts can do when a public authority breaches its conduct mandate. A court can only do something about such a breach if the first thirty-six words of Charter s. 39(1) are satisfied. Those words set out a test about how certain non-Charter laws apply to a particular thing done by a public authority. My view is that they don’t require that the thing the authority did actually be illegal under non-Charter law or even that there be any suggestion to that effect. Instead, they are concerned with a hypothetical: what would happen if the thing was illegal under non-Charter law? If there’d be a relief of remedy in that situation (obviously sourced from non-Charter law), then a court can provide the exact same remedy for a breach of the conduct mandate occasioned by the exact same conduct by the exact same public authority. To quote Evans and Evans, Charter s 39(1) permits the conduct mandate ‘to supply an element of unlawfulness that some other law requires in order to obtain relief or a remedy’.
As I’ve said repeatedly, it seems quite unnecessary to go through the hypothetical of wondering what would happen if a public authority’s conduct was unlawful under a non-Charter law. That’s because Charter s. 38 itself provides that a breach of the conduct mandate is unlawful. So, instead of doing all this imagining, why not just ask a legal question: what can a court do when the public authority in question does something unlawful? The answer is provided by Victoria’s law on relief and remedies, just as it is when any other law declares something to be unlawful. Charter s. 39(1)’s main purpose appears to be just to make it clear (not that its wording actually makes anything clear) that the Charter itself doesn’t provide any reliefs and remedies itself. This is pretty obvious, when you compare the Charter to other jurisdictions that have express remedy provisions, like the UK and (from 2009) the ACT, but it isn’t so obvious when you look at what happened in the US and NZ, where such special remedies were held to be implicit in the mere existence of legal rights.
However, whether it’s needed or not, Charter s39(1)’s language now governs what reliefs or remedies non-Charter law can give for Charter breaches. This post is concerned with that language. The crucial point to note is that Charter ss 38(1) & 39(1) are exclusively concerned with ‘unlawfulness’ a term that doesn’t cover the field when it comes to the law on relief or remedies. Continue reading