The messy gift of Charter s. 39(1)

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

The messy demand of Charter s. 39(1)

A few months ago, I wrote a couple of posts on this dreaded Charter 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.

My concern then was in determining what this provision – written as if it’s granting a remedy – actually does. The answer, alas, is that it does the opposite, barring remedies for a breach of the Charter unless a particular condition is satisfied. The condition is the bit underlined above. Understanding this condition is crucial, if only because satisfying it allows the mess that is the rest of the s39(1) to be avoided.

Alas, the condition is not much clearer than the rest of the provision, because of two words:

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…

So, what does ‘may seek’ mean? Pound & Evans (and a couple of others) see three options:

  • ‘gets’, i.e. you have to first get relief for a non-Charter breach from a public authority before you can get relief for a Charter breach from that authority
  • ‘almost gets’, i.e. you have to convince a court that you have a reasonable argument for getting relief for a non-Charter breach from a public authority before you can get relief for a Charter breach from that authority
  • ‘tries to get’, i.e. you have to genuinely try to get a non-Charter remedy from a public authority before you can get relief for a Charter breach from that authority
No-one much likes the first option and split on the second and third. I think they’re all wrong. Continue reading

The superlative WA draft

My recent post on Charter s7(2)’s ‘subject under law’ language led me to check out the draft Human Rights Act proposed as part of the WA rights consultation. That draft has been around for a year, as it was promulgated by the WA government before the consultation (a toned down variation of the ‘statute first, consultation second’ process I proposed before 2020.) But, good process or not, the draft is a landmark because of its terrific drafting, which puts the Charter to shame. 

To see what I mean, consider the single biggest drafting mystery of the Charter: what the hell is its legal effect? In particular, are there any obligations other than the conduct mandate (the Charter s6(2)(b) mystery)? And are there any remedies other than the ones ‘permitted’ by the remedies provision (the Charter s39 mystery)? Now read Part 3 of the draft WA Human Rights Act:

Part 3 — Observance of human rights

28. Who is required to observe human rights
This Act does not require a person to act or make a decision compatibly with human rights, except as provided in Part 6
[the WA equivalent to Division 3 of Part 3 of the Charter, on obligations]

29. Breaches do not give rise to cause of action, except as provided by this Act
(1) This section does not affect the operation of section 36. [the equivalent to Charter s. 36, on declarations]
(2) A breach of a human right does not create any enforceable right or any cause of action, except to the extent provided by section 41 [the equivalent to Charter s. 38(1), the conduct mandate]
(3) A person is not entitled to damages or any other pecuniary remedy because of a breach of a human right.

And there you have it: the entire effect of the draft WA HRA on people (i.e. responsibilities and remedies) is provided for by the declarations power,  the conduct mandate and the remedies clause. That’s it. Now, as it happens, I happen to think the same is true for the Charter. But, because the Charter doesn’t say so, Victorian courts will take many months – or most likely years – to reach those conclusions. And there’s a risk – a big risk – that they will reach the opposite conclusion.

The blame is on the drafters of the Victorian Charter, who – except for repeated declarations of parliamentary sovereignty – simply wouldn’t put in explicit terms what the Charter doesn’t do. Why the drafters wouldn’t is a mystery.  It could be because they didn’t want to make it clear how little the Charter did (a sly way of making the Charter more politically palatable to the pro-rights lobby.) It could be because they wanted to leave room for the courts to read more into the Charter (a sly way of getting an enhanced Charter through despite the objections of the anti-rights lobby.) It could be because they didn’t think about these fundamental issues (whereas the WA drafters obviously did and were willing to be upfront about the government’s preferred answer.)

As it happens, I have reason to think that the difference has nothing to do with the Charter Continue reading

Frankly not bright enough

The other half of Sunday’s Age article on the Charter concerned the prospect of legal confusion caused by the Charter. I think this issue merits much more attention than the usual debates about judicial activisim and dialogues and whatnot.

That being said, I’m sad to see it being raised in this way:

Prosecutors are reluctant to air publicly their concerns about the charter, but one senior prosecutor, who declined to be named, told The Sunday Age the courts would be flooded with litigation that would provide many defence lawyers with “a lifelong right to an income that they probably don’t deserve”. The charter was “an absolute disaster” for the court system and would clog it up for no good reason, the prosecutor said. The traditional system of common law had adequately protected Victorians’ human rights for decades, and the charter’s authors were “frankly not bright enough” to make it watertight.

Hey there ‘senior prosecutor’! Why exactly aren’t you willing to go on the record with these comments? If your excuse is to do with the integrity of the Office of Public Prosecution, then why are you willing to lend your title to them, especially the personal insults?

Here’s the way the same point could have been put: Continue reading

The gap in Charter trial remedies

In two previous posts on R v Rich (Ruling No 2) [2008] VSC 141, I discussed how the Charter’s transitional provision on proceedings prevented the Charter from applying in that case and how Rich was able to rely on the common law to obtain a ruling that Corrections Victoria should pimp up his in-cell computer with the latest software. But there’s an incongruity between these two aspects of the ruling that was briefly addressed by Lasry J. After noting that both sides conceded that Charter s. 49(2) applied to the proceedings (and hence the Charter didn’t), he wrote:

However, that was not quite the end of the matter so far as the accused was concerned. In the written submissions (though not pursued in oral submissions) it was asserted that the Charter applied to Corrections Victoria and has done so since 1 January 2008. It was put that Corrections are acting unlawfully by preventing the accused from properly preparing his trial and instructing his legal representatives, and reliance was placed on s 38.

The concluding submission was that the Charter applied to the accused to the extent that it makes unlawful conduct of public authorities which is incompatible with a human right or failing to give proper consideration to a relevant human right.

I am considering the question of whether or not a temporary stay should be granted in the criminal proceedings brought by the Crown against the accused. The accused has conceded that the Charter does not apply on those issues. I have already made clear that Corrections, although a participant in the proceedings, is not a party against whom I would propose to make any orders and I therefore do not propose to resolve any questions raised under Division 4 of the Charter.

Let’s start with that last paragraph. Given that Lasry J’s ruling was entirely concerned with the conduct of Corrections Victoria (specifically the IT department of the Melbourne Remand Centre), how can he say that his orders were not made against that public authority? The answer reveals a quite fundamental gap in the Charter’s protections for Victorians awaiting criminal charges. Continue reading

Charter applied again!

It’s a sign of the lacklustre start to the Charter that, on the cusp of its fifth month, its stunning news that the Charter’s actually been applied again. I’m actually late to this news, which was reported in the Herald Sun last week. This is the third time the Charter has been applied. The first time was Bongiorno J’s dodgy bail judgment in the Supreme Court in mid-January. The second was a Magistrates’ Court bail judgment a week later. And the third….. another Magistrates’ Court bail judgment. Here’s the article while I try to calm down:

A HUGE court backlog has seen a man accused of belonging to a Mokbel drug cartel freed on bail. Melbourne Magistrates’ Court heard Zlate Cvetanovski, 41, was unlikely to face trial until well into 2010, more than two years after his arrest by Purana Taskforce detectives. Mr Cvetanovski is accused of being an apprentice amphetamines cook in Tony Mokbel’s drug syndicate and of trafficking a large commercial quantity of methylamphetamine between June 2005 and April 2006. Police allege he was paid $200,000 to help manufacture amphetamines at a secret lab and that he had links to members of the Mokbel family. He is also charged with dealing with $72,175 in cash, alleged to be proceeds of crime. The court heard he was on bail for unrelated matters when arrested on returning from a gambling trip in Sydney last week.

Magistrate Peter Couzens said higher courts and the new Charter of Human Rights made it clear that defendants were entitled to have their cases heard without delay. A check by the prosecution with the County Court — where the case will be heard if Mr Cvetanovski is ordered to stand trial — indicated it would not be listed for at least two years from the time of his arrest. “By anyone’s standards, that type of delay is totally unacceptable,” Mr Couzens said. Defence lawyer Damian Sheales told the court that his own experience of delays at the County Court included a day where there were 19 trials awaiting judges. The magistrate said that had the case against Mr Cvetanovski been overwhelming, he may have denied bail in spite of the delay. But there were no fingerprints tying him to the drug laboratory, and the case relied heavily on the evidence of informers who were themselves drug traffickers, he said. Mr Couzens granted Mr Cvetanovski, of Avondale Heights, $350,000 bail, with conditions. He is due to return to court in July.

The magistrate seems to have applied Charter s. 25(2)(c):

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-

(c) to be tried without unreasonable delay…

(Again, Charter s.21(5)(b) could scarcely be relied upon, given that Cvetanovski has been on remand for all of one week!)

However, as previously discussed, the mere fact that a defendant has been denied an ‘entitlement’ doesn’t mean that any rights have been breached or that he gets a remedy. Here’s the run-down: Continue reading

The messy effect of Charter s. 39(1)

In a previous post, I discussed the origins of section 39(1), the Charter’s ‘remedies’ provision. Here, I’ll continue that discussion by asking what effect s. 39(1) has (holding off, for now, the question of when precisely it has that effect.) Advanced warning: my conclusion is that the effect of s. 39(1) is extremely uncertain.

Section 39(1)  says:

(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 literal effect of the section can be identified as follows:

(1) If [a particular condition about a person and a relief or remedy is satisfied], that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

So, s39(1) says that certain people ‘may seek’ certain reliefs/remedies on a ground of a certain type of ‘unlawfulness’. Alas, the section does not mean what it says.

Continue reading