Allan, James --- "The Victorian Charter of Human Rights and Responsibilities: Exegesis and Criticism" [2006] MelbULawRw 28; (2006) 30(3) Melbourne University Law Review 906
THE VICTORIAN CHARTER OF HUMAN RIGHTS AND RESPONSIBILITIES: EXEGESIS AND CRITICISM
JAMES ALLAN[∗]
[The author subjects the recently enacted Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic) to a detailed series of criticisms. In particular, he considers the main operative provisions of this bill of rights, their provenance in the New Zealand and UK models, and the ways in which we can expect this instrument to hand significant powers to the judiciary.]
CONTENTS
I INTRODUCTION
The State of Victoria has recently enacted the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Victorian Charter of Rights’). This article is a critique of that enactment.
Let me start, however, by laying my cards on the table. I am a longstanding opponent of bills of rights, be they constitutionalised or statutory.[1] On consequentialist grounds, Waldronian grounds,[2] and on democratic theory grounds, I have attempted to make the general case against adopting or enacting (or, more relevantly outside Australia, in favour of repealing) such instruments.
This article will not be pitched in any such general terms. Instead, it will focus on exegesis and on what I perceive to be some of the flaws, failings and weaknesses in the Victorian Charter of Rights. For the most part it will be black-letter law writing. Still, the reader will be left in no doubt that the exegetical analysis is being undertaken by someone with a strong antipathy to bills of rights (for all of the reasons set out in the pieces cited in the first footnote).
The Victorian Charter of Rights is the child of an earlier Draft Charter of Human Rights and Responsibilities (‘Draft Charter of Rights’), which was set out in Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee.[3] I will return at the end of this article to make a brief comment about the Human Rights Consultation Committee (‘Consultation Committee’), but for now suffice it to note that it was chaired by someone with a longstanding commitment to promoting the adoption or enactment of some sort of (in fact, any sort of) bill of rights.[4] Nor had any one of the other three Consultation Committee members[5] ever, to my knowledge, expressed even the slightest scepticism at all about the desirability of adopting or enacting a bill of rights. Hence, the Consultation Committee was chaired by one of Australia’s leading bill of rights proponents (from New South Wales) with no known sceptic amongst the other members.
The Victorian Charter of Rights has 49 sections. An immediate difficulty would appear to be s 2, the commencement provision. According to sub-s (1) the preponderance of the Victorian Charter of Rights is to come into operation on 1 January 2007. Yet sub-s (2) indicates that certain sections (ss 32–9) will not come into operation until a year later, on 1 January 2008. In particular, the reading down provision (s 32), the ability to refer matters to the Supreme Court (s 33), the Attorney-General’s right to intervene (s 34), and the declaration of inconsistent interpretation provision (s 36) are all to be put on hold for a year.
Notice that the Draft Charter of Rights postponed the coming into force of only two sections.[6] This limited postponement may have made some sense; I am not sure. But the present version’s suspending of the operation of the s 32 reading down provision — in my view the most potent provision in the entire Victorian Charter of Rights, as I will attempt to show below — strikes me as extremely odd. If the government had needed more time to vet its other legislation, it could have delayed passage of the Victorian Charter of Rights. Perhaps the goal, then, is to ensure that nothing much happens in the way of judicial adventurism for at least a year. Nor is it clear why referrals to the Supreme Court (s 33) or the Attorney-General’s right to intervene (s 34) should be put off for a year. As for precluding the Supreme Court from making a declaration of inconsistent interpretation (s 36) for 12 months after the bulk of the Victorian Charter of Rights comes into operation, it is not at all evident to me what is expected of the judges during that interval. Perhaps it is thought that no important cases will reach this far in one calendar year. Or perhaps, again, the goal is to stifle the judges for one more year.
Leave aside now this s 2 commencement oddity. Leave aside, too, the substantive enumerated rights (ss 7–27). What gives potency to a statutory bill of rights are the operative provisions — the provisions such as those related to how the judges are to read other statutes; when they can decide a limitation on rights is, in the judges’ view, reasonable; to whom the bill of rights applies; and what else the judges are able to do when they happen to feel some other statute has infringed one of the substantive, enumerated rights. The key provisions of the Victorian Charter of Rights on this front are s 32 (the reading down provision), s 36 (the declaration of inconsistent interpretation), s 31 (the override), s 7 (the abridging provision), s 28 (the statements of compatibility), and s 6 (the application provision).
I propose next to consider these six particular sections in the order just given. My view is that these operative provisions — these tools for operating the rest of the Victorian Charter of Rights — are what will empower the unelected judges to draw far more of the social policy lines (lines at present drawn by the elected legislature) than the proponents of the Victorian Charter of Rights pretend. In attempting to make that case I will trace out the genealogy of several of these sections in the bills of rights of New Zealand, the UK and Canada, and how they have been used in those jurisdictions. I will note, too, oddities in their interrelationships. And I will point out one or two interesting changes in the move from the Draft Charter of Rights to the Victorian Charter of Rights.
II SECTION 32 — THE READING DOWN PROVISION
No provision in a statutory bill of rights is more potent — and does more to transmogrify the powers available under statutory versions into something approaching those under constitutionalised versions — than reading down provisions. Indeed, if judges take such provisions to be licences ‘to do justice’, then these reading down provisions can come close to allowing judges to do what the disinterested observer would characterise as an out-and-out rewriting or redrafting of other statutes. Let me show how.
The reading down provision in the Victorian Charter of Rights reads as follows:
(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.[7]
Compare this to the reading down provision in the New Zealand Bill of Rights Act 1990 (NZ):
Whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.[8]
And, likewise compare it to the one in the Human Rights Act 1998 (UK) c 42 which reads to start:
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 Convention rights.[9]
Leave aside the question of whether ‘can be given’ is more, or less, commanding than ‘so far as is possible’, and whether ‘shall’ is more, or less, peremptory than ‘must’. The danger with these sort of reading down provisions — these directions to give the words of other statutes a meaning that you, the point-of-application interpreter, happen to think is more moral and more in keeping with your own sense of the demands of fundamental human rights — is that just about any statutory language (however clear in wording and intent) might possibly be given some other meaning or reading.
Put differently, reading down provisions such as these throw open the possibility of ‘Alice in Wonderland’ judicial interpretations; they confer an ‘interpretation on steroids’ power on the unelected judges. So although there is no power to invalidate or strike down legislation, the judges can potentially accomplish just as much by rewriting it, by saying that seen through the prism (that is, their own prism) of human rights, ‘near black’ means ‘near white’ or ‘interim order becomes a final order’ means ‘interim order does not become a final order’.[10] They can make bill of rights sceptics half long for the honesty of judges (under constitutionalised bills of rights) who strike down legislation rather than gut it of the meaning everyone knows it was intended to have (rule of law values notwithstanding).
Now that can sound alarmist. So the question arises, has anything remotely like that occurred under the UK and New Zealand reading down provisions? After all, the Victorian Charter of Rights is basically a copy, an amalgam, of those two overseas enactments.
As it happens, the answer to that question is a definite ‘yes’.
Start with the UK and consider the case of Ghaidan v Godin-Mendoza.[11] In that case the House of Lords (Lord Millett dissenting) held that the s 3 reading down provision in their Human Rights Act 1998 (UK) c 42 enabled a court to depart from the unambiguous meaning that a piece of legislation would otherwise bear. (That is their characterisation, by the way, not mine.)
Read what Lord Nicholls was prepared explicitly to say:
It is now generally accepted that the application of s 3 does not depend upon the presence of ambiguity in the legislation being interpreted. Even if, construed according to the ordinary principles of interpretation, the meaning of the legislation admits of no doubt, s 3 may none the less require the legislation to be given a different meaning. … Section 3 may require a court to … depart from the intention of the Parliament which enacted the legislation. … It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it convention-compliant [meaning bill of rights compliant].[12]
The other Lords (even Lord Millett in dissent) were broadly in agreement with these revolutionary views.[13]
Lord Steyn’s view was that the reading down provision applies even if there is no ambiguity: ‘The word “possible” in s 3(1) is used in a different and much stronger sense.’[14] His Lordship suggested in clear terms that the interpretation adopted need not even be a reasonable one. Lord Steyn also strongly urged that the English courts opt to use this reading down provision — in blunter terms, to interpret away any judicially perceived flaws in legislation — as the prime remedial remedy and resort to s 4 (declarations of incompatibility) only in exceptional circumstances. Meanwhile, Lord Rodger adopted a sort of ‘judicial vandalism’ test, the implication being that anything short of drastic rewriting of legislation is acceptable. And just to give you the full flavour of the potential power of these reading down provisions, it is crucial to realise that in reaching this result their Lordships overruled one of their own House of Lords authorities — a case on the meaning of exactly the same statutory provision, an authority only five years old, and one that had held the meaning to be clear.[15]
On the basis of present case law trends in the UK, therefore, and recalling that the reading down provision in the Victorian Charter of Rights looks very much like the UK version, there is certainly some basis for asserting that ‘Alice in Wonderland’ judicial interpretations will follow in the wake of the enactment of the Victorian Charter of Rights.
The experience in New Zealand reinforces this assertion — that the Victorian Charter of Rights’ s 32 reading down provision potentially confers a sort of ‘interpretation on steroids’ power on the unelected judiciary. Here I will not recount the entire New Zealand experience with its statutory bill of rights Act.[16] Simply consider the case of R v Pora.[17] In that case three of seven judges in their highest domestic court were prepared to say that because of the statutory bill of rights (with its reading down provision) it was no longer the case that later statutes impliedly prevail over earlier, inconsistent statutes.[18] In other words, they were prepared to set aside the doctrine of implied repeal; they were of the view that the judges could use the bill of rights (and its reading down provision) to prefer the earlier statute over the later one provided that they, the unelected judges, happened to find the earlier one more in keeping with what they felt was a rights-respecting outcome.
Put in slightly different terms, New Zealand is one judicial vote away from handing judges the power to choose whether newly enacted statutes can be ignored in favour of older, existing statutes. Of course, this is only to be done when the judges (or rather a majority of the judges) think this new statute infringes the bill of rights. Still, it is far from clear how constraining that would be.
I make only three points here. The first is that were this to come to pass, it would look (to me, at least) very much like what the judges do under a constitutionalised bill of rights. There they strike down statutes. Here they would ignore them in favour of other, older, inconsistent statutes.
My second point is that it is precisely the reading down provision that gives the judges this significant power — or, more accurately stated, that the judges in jurisdictions whose provisions Victoria is copying are at present saying it gives them. Those who pretend that statutory bills of rights are enfeebled versions of their constitutionalised cousins need to explain how it is that Parliament really does keep the last word when the judges are prepared either to rewrite legislation (à la Ghaidan) or to ignore it in favour of older legislation (à la Pora). Alternatively, they might try to convince us that, despite being handed the same tools, Victoria’s judges will not mimic their judicial confrères in the UK and New Zealand. Relatedly, they might also suggest why one would want to risk this sort of renunciation of orthodoxy.
My third point is one that I have thus far deliberately not emphasised. The reading down provision in the Victorian Charter of Rights contains something absent in New Zealand and the UK’s reading down provisions, namely sub-s (2).[19]
This subsection contains an explicit invitation to pay heed to overseas developments. It invites the Victorian judges to look at the precedents set in Ghaidan and Pora, inter alia. In my view this is likely both to make the questions in the preceding paragraph even harder for bill of rights proponents to answer as well as leading to a general ratchet-up effect as regards the scope, ambit and reach of rights.[20]
All that proponents of the Victorian Charter of Rights can point to as potentially vitiating this ‘interpretation on steroids’ power and the resulting judicial activism is the s 32(1) phrase ‘consistently with their purpose’ — a phrase absent in the New Zealand and UK reading down provisions. But that seems to be a fairly slight bulwark to constrain the judges, especially given Lon L Fuller’s 60-year-old dissection of the malleability of purposive interpretation.[21]
III SECTION 36 — THE DECLARATION OF INCONSISTENT INTERPRETATION
Subsection (2) is the key provision here. It reads:
Subject to any relevant override declaration, [under s 31, which I turn to next] 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.[22]
The comparable provision in the Human Rights Act 1998 (UK) c 42 is found in s 4(2): ‘If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility’.
The Draft Charter of Rights had followed the UK wording almost exactly. It had called the relevant section ‘Declaration of Incompatibility’[23] and sub-s (2) there had read, in part, ‘if the Supreme Court is satisfied that a statutory provision is not compatible with a human right, the Court may make a declaration’.[24]
Now this section matters. In the absence of any power to strike down legislation (as per constitutionalised bills of rights as in the US and Canada), and assuming (optimistically in my view) that the judges will not go too far down the Ghaidan/Pora path of preferring to use the reading down provision, it is precisely these judicial declarations that are supposed to give rise to all the benefits proponents of statutory bills of rights predict. The claim is that there will be some sort of dialogue[25] and that the legislature — on learning that one of its statutes has attracted one of these judicial declarations — will ponder it and will then reflect on how best to accomplish its aims while at the same time attempting to uphold the various enunciated human rights, or at least limiting them only to an extent that is reasonable and justifiable.
That is the claim. However, that claim is only remotely plausible where the elected legislature is left in a position in which it feels it can, on occasion at least, disagree with and overrule the unelected judges. The substantive enumerated rights in any bill of rights are always articulated in vague, amorphous, emotively stirring terms. They are pitched up in the Olympian heights of moral abstractions (for example, ‘the right to freedom of expression’, ‘to life’, ‘to freedom of religion’) in terms that in themselves do not resolve difficult policy decisions down in the quagmire of detail — decisions related to where to draw the line when it comes to campaign finance rules, hate speech provisions, euthanasia regimes, what devout religious adherents can wear to school and much, much more. In brief, the rights in a bill of rights are in no way self-executing. Nor is the determination of what may or may not constitute a reasonable and justifiable limit on these rights self-evident.[26]
Accordingly, the judges under a bill of rights are being given power (arguably considerable power) to draw many of those social policy lines — to say what the implications of the vague, stirring notion of a right to free speech, say, will be vis-a-vis advertising (including of tobacco),[27] or on reform of defamation laws,[28] or on the criminalisation of hate speech.[29] If the Victorian Charter of Rights is really to result in a dialogue, a scenario in which the judges’ views do not routinely prevail, then it must be the case that sometimes — in fact — the elected legislators stand up to the unelected judges and say, in effect, ‘we’ve heard your view about how rights ought to play out and we’ve considered it but after more reflection we disagree’. If the judges always prevail, that in no way resembles a dialogue.[30]
The signs on this front are bleak indeed. In Canada, with its constitutionalised Canadian Charter of Rights and Freedoms that nevertheless contains an override, the elected federal Parliament has not used that override — not one single time — in the 24 years of the Canadian Charter’s existence.
Perhaps, though, that can be ignored as what flows from a constitutionalised model (or so, at least, we regularly are reassured). What then of the UK? It has a statutory bill of rights. It has a provision allowing the judges to make declarations of incompatibility. What, in fact, happens over there after the judges issue them? Does the elected legislature ever dispute what almost always amounts to a highly debateable line-drawing call, one over which sincere, reasonable, well-informed, even nice people can and do disagree?
The answer is ‘no’. According to Francesca Klug and Keir Starmer, writing in 2005, ‘[i]n every case where remedial action had not been taken before the [judicial] declaration was made, the government responded by repealing, amending or committing to repeal or amend, the relevant provision.’[31] In other words, after every single judicial declaration of incompatibility in the UK, every single one of them, the elected legislature deferred to the unelected judges.
Dialogue should be made of sterner stuff.
Part of the problem, it has been surmised,[32]
is the actual wording of such provisions. They can seem to imply — incorrectly and inaccurately — that the elected Parliament’s legislation is definitely and without doubt at odds with some individual’s human rights and that if the legislation stands, rights will be infringed. In other words, both override provisions[33] and judicial declarations of ‘incompatibility’[34] (UK) or of ‘inconsistent interpretation’[35] (Victoria) can convey the impression that the unelected judges have some authoritative, definitive (and to me, mysterious) ability to know and to declare precisely where to draw all the highly contestable and disputed lines (including knowing just what amounts to a reasonable limit and what does not). So if the judges say that statutory provision X breaches rights, then the wording of the declaration section implies (wrongly, but for some persuasively all the same) that their view is incontestably correct.
That is the claim. And if correct, one can see why the elected legislatures in Canada and the UK almost never stand up to the judges. They are, on that account, forced into the position of saying ‘we intend to breach your fundamental rights’. And that, in practice, is almost always impossible for a legislature to do.
It is also grossly misleading in terms of a characterisation of what is in fact happening, which is that the judges (or rather, a majority of judges) and the legislators (or rather, a majority of legislators) have disagreed over a highly contestable decision about where to draw some line on the basis of an indeterminate, abstract rights entitlement.
My own view is that in the 24 years of the existence of the Canadian Charter of Rights and Freedoms and in the 16 years of the existence of the New Zealand Bill of Rights Act 1990 (NZ) there is hardly a single rights-based case that has been decided in either of those jurisdictions where the answer has been self-evident and so over which smart, reasonable, nice people cannot and do not disagree. In other words, the judges are virtually never deciding moral black and white cases of the sort bill of rights proponents like to imagine. Rather, they are deciding cases where citizens, and the judges themselves, reasonably disagree.
What is needed to enable the legislature to respond to the judges, at least once in a while, is wording that ‘acknowledge[s] that rights might be disputable, or … acknowledge[s] that a federal or provincial [or state] legislature might have a view of rights that was, though controversial, no less reasonable than the view arrived at by the judiciary’.[36]
In my view the wording in the Human Rights Act 1998 (UK) c 42 and in the Draft Charter of Rights — ‘the court is satisfied that a statutory provision is not compatible with a human right’[37]
— fails this test. It clearly conveys the idea that the judges are the authoritative determiners of what is or is not compatible with human rights.
The question for us is whether the changes made in the move from the Draft Charter of Rights to the Victorian Charter of Rights are sufficient to prevent this same sense from being conveyed, of all rights decisions being wholly within the province of the judiciary. Personally, I think not. True, it is now called a ‘declaration of inconsistent interpretation’[38] rather than a ‘declaration of incompatibility’.[39] And true, the test is now stated to be whether the Court ‘is of the opinion that a statutory provision cannot be interpreted consistently with a human right’.[40] This is evidently an improvement, a noticeable improvement, on the wording in the Draft Charter of Rights and in the Human Rights Act 1998 (UK) c 42. The word ‘opinion’ is explicitly used, for a start.
That said, more could have been put into s 36 to acknowledge that a legislative ignoring of such a judicial declaration was not motivated by a desire to override rights, but was due to the legislature having taken a different view than the judges (or rather, a majority of legislators having taken a different view than the majority of top judges) on how some amorphous rights-based entitlement ought to play out down in the quagmire of detail.
My bet is that such niceties will be immediately downplayed by bill of rights proponents and that any legislative disagreements with the judiciary, any suggestions that a declaration of inconsistent interpretation will be ignored and the legislation left as is, will be met with howls of protest that the legislature is trampling on rights and that the judges are best placed (perhaps uniquely placed) to tell us mere citizens what our rights should be.
In fact, I would bet a great deal on that being how this plays out. The only dialogue likely to emerge is of the sort seen in Canada and the UK, the ‘ordering in a restaurant’ variety of dialogue where the judges do the ordering and the legislators the serving.
IV SECTION 31 — THE OVERRIDE
Whatever one might say about s 36 — and half-hearted or otherwise attempts to convey the sense that judges do not have a pipeline to God as far as rights determinations go — the same clearly cannot be said about s 31. If Parliament wishes to invoke the override, s 31(1) provides that it ‘may expressly declare in an Act that that Act … has effect despite being incompatible with one or more of the human rights … set out in this Charter.’[41]
As I hope the preceding discussion made clear, this wording grossly distorts what is at stake and what is happening. The elected legislature may want to inoculate its view of how fundamental rights ought to play out and what constitutes a reasonable limit on them without having any intention at all to legislate in a way that is incompatible with rights. Section 31(1) only makes sense, is only comprehensible, if one starts by assuming that the unelected judges — and only these judges — are the authoritative determiners of the proper scope and ambit of our rights. (And in my opinion many bill of rights proponents do start with that assumption, though few openly articulate it.) Sure, legislatures can say that they will override our rights by invoking s 31. But they cannot take a different view of what respects and upholds rights and insulate that from judicial second-guessing.
So I ask again, how attractive do you think any elected legislature would find s 31(1) to use?
A separate question here is what the point of s 31 is. The Victorian Charter of Rights is a statutory bill of rights. There is no power for the judiciary to strike down or invalidate statutes. Yes, the Victorian judges might follow their British counterparts and be tempted to use the s 32 reading down power to indulge in ‘Alice in Wonderland’ interpretations, to redraft statutes to make them say what they want them to say. Alternatively, the judges might make a declaration of inconsistent interpretation, confident that their view of how difficult, highly debateable rights issues ought to play out will be treated as somehow self-evidently the correct one.[42] But what reason is there for the elected Parliament to use s 31?
Notice that if a new Act is not prefaced with any sort of s 31(1) override claim, it is supposed to prevail anyway. In circumstances in which the judges think that some provision is inconsistent with their view of what is a reasonable limit on rights, or of the proper scope and ambit of one of the substantive rights, that provision is supposed to stand even without an override declaration. (And this is true even when the legislature is passing an Act to respond to an earlier court decision.) So why have s 31 there at all?
I fear the answer is to ratchet-up the stakes. Absent a s 31(1) parliamentary declaration (and note again that the misleading wording of the subsection makes any such attempt to make such a declaration extremely unattractive) the judges may feel freer to indulge in s 32 reading down interpretations (‘this Act used the word “black” but in the absence of an override declaration, and because we judges happen to feel that taking it at face value would give rise to a breach of fundamental rights, we interpret it to mean “white”’) or to make a declaration of inconsistent interpretation. (I leave it for the reader to trace out the same thought process for him- or herself, one in which the absence of a s 31(1) override is taken to be evidence that the judges should feel even less deferential and less constrained than they otherwise would.)[43]
V SECTION 7 — THE ABRIDGING PROVISION
If the reason for having an override provision is somewhat opaque, the grounds for including an abridging provision (s 7(2) of the Victorian Charter of Rights states that a ‘human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society’)[44] are wholly mysterious. The Human Rights Act 1998 (UK) c 42 does not have one. Canada does, though, and so does New Zealand.[45]
Of course in the case of Canada, with a constitutionalised bill of rights, such a provision makes sense. It formalises what the judges do anyway, simply making it more transparent.[46]
Given that the judges are empowered to invalidate or strike down Acts of Parliament, the abridging provision simply tells them not to do so if the legislation’s limit on the particular right is, in their view, a reasonable and justifiable one.
In New Zealand and Victoria the judges are not empowered to strike down or invalidate legislation. So what is the point of having such an abridging enquiry? And in attempting to answer that question, recall that there is a reading down provision, as outlined above.[47]
Think of it this way. You are a judge in Victoria and you have to decide whether some other statute, let us call it Act X, is consistent with the Victorian Charter of Rights or not. In approaching this task, do you begin with s 32 (the reading down provision) or with s 7 (the abridging provision)?
Assume you start with s 32. This section tells you to read Act X and, if possible, give it a meaning consistent with the Victorian Charter of Rights. If (with whatever degree of idiosyncrasy in giving meaning to Act X) you hold that it is possible to give Act X such a consistent meaning, then that will be the end of the matter. There is simply no need to move on to consider s 7. The Victorian Charter of Rights and Act X (with the meaning you have imputed to it using s 32) will be consistent and both can stand.
The other potential outcome, of course, is that you decide that it is not possible to give Act X a meaning consistent with the Victorian Charter of Rights. In other words, you decide that Act X is inconsistent with the Victorian Charter of Rights. The next step is presumably to make a declaration of inconsistent interpretation (under s 36).
Can an appeal to s 7 possibly change that? Recall that we are supposing a s 32 holding of inescapable inconsistency, otherwise we could never even have reached the stage of considering s 7. But once that supposition is made, s 7 is redundant and otiose.
Why? Because a holding of inconsistency under s 32 is functionally equivalent to a s 7 finding that Act X places an unreasonable limit on the Victorian Charter of Rights. How can you have read Act X and, after having given it all possible interpretive leeway imaginable, decided its meaning was incompatible with the Victorian Charter of Rights and now (under s 7) be able to say Act X nevertheless imposes a reasonable limit on the Victorian Charter of Rights? To do that you would have to be able to say that Act X was inescapably inconsistent with the Victorian Charter of Rights but all the same it was perfectly reasonable in the limits it imposed.
Personally, I cannot see a judge ever doing that. But if I am wrong, what would the effect be? Act X would still stand. The only possible effect of the s 7 abridging enquiry would be to avoid making a declaration of inconsistent interpretation (under s 36). But s 36 refers specifically to the s 32 determination, not to the s 7 task.
Would it matter in any way if you had opted to start with s 7 rather than s 32? I think not. Section 7 allows the substantive rights in the Victorian Charter of Rights to be subject to reasonable limitations. So going back to your hypothetical task as a judge, and this time assuming you start with s 7, you would first ask if Act X places a limit on any of the rights in the Victorian Charter of Rights and if so whether those limits are or are not reasonable.
If you decide Act X places no limits on the Victorian Charter of Rights you are finished. And the s 32 determination to follow is pointless. If Act X places no limits on the Victorian Charter of Rights then it cannot be inconsistent with it.
The same reasoning applies if Act X does place a limit on the Victorian Charter of Rights but that limit is judged, by you, to be reasonable. How can a limit flowing from Act X that is a reasonable, justifiable one allow you, the judge, to say that Act X is inescapably inconsistent with the Victorian Charter of Rights? Accordingly, at least so far, by starting with s 7 you have simply made s 32 otiose.
What about the last possibility? On this premise you have read Act X and judged that it places an unreasonable, unjustifiable limit on one or more of the rights in the Victorian Charter of Rights. So now you move on to the s 32 task. Alas, it is a waste of time. Having found that Act X places unjustifiable and unreasonable limits on the Victorian Charter of Rights (under s 7), how are you to read down Act X and attempt to give it a meaning that is consistent with the Victorian Charter of Rights (using s 32)?
Let me be more specific. Presumably you would undertake your later-in-time s 32 task by trying to give Act X a meaning consistent with the Victorian Charter of Rights. However, were you ever able to do this the obvious question to ask would be what meaning you had given to Act X during the preceding s 7 process. How can Act X be read at first as imposing unreasonable limits on rights and then, later, as being consistent with rights? Are we to suppose that we use one interpretive approach for the stage one s 7 abridging enquiry (say, a literal approach) and then a wholly different one for the stage two s 32 reading down enquiry (say, some non-literal, exceedingly generous approach)?
This is implausibility piled on implausibility. If you decide to start with the s 7 task then you foreclose any non-perfunctory recourse to the s 32 determination.
I say it again. It is far from clear why s 7 has been included. The British saw the problem and omitted any such abridging provision from their Human Rights Act 1998 (UK) c 42. In New Zealand the courts have struggled to know what to make of their equivalent provision.[48] Its main effect in New Zealand has been as a device to allow the judges there — on no other statutory warrant whatsoever and in the face of the legislative history[49]
— to give themselves a power to issue declarations of inconsistency when no such power was given them by the legislators.[50]
I can think of only two plausible, non-redundant usages for s 7. First, when a statute is not in play, the abridging enquiry might be relevant as regards the common law, because in that situation s 32 would not apply. Secondly, s 7 might be read as bearing on the s 28 statement of compatibility task,[51] which I turn to next.
VI SECTION 28 — STATEMENTS OF COMPATIBILITY
This provision does seem to relate to the oft-proclaimed goal of making the elected legislature think more about rights before enacting laws. The Draft Charter of Rights had to some extent mimicked the New Zealand position[52] and made the Attorney-General responsible for preparing each and every statement of compatibility, a statement of whether it is believed that the Bill being introduced is or is not compatible with the rights enumerated. The Victorian Charter of Rights moved away from the New Zealand position very close to the UK position, making the member introducing any Bill responsible for such statements of compatibility. (And for government Bills that means the relevant Minister, which is the UK position.)
The live issue here is simply stated. To what extent will these determinations of compatibility be made on the basis of the elected parliamentarians’ own considered views (which is presumably what those who profess a desire for MPs to think more about rights would want) and to what extent will they simply collapse into a statement of how judges — here, in Canada, in New Zealand, in the UK, in the US — have treated these rights or are thought likely to treat them?
Put more prosaically, in introducing a Bill to put, say, warnings on alcohol about the dangers to pregnant women, will the s 28 statement of compatibility collapse into a wholly legalised, lawyer-driven account of how the right to free speech has been treated in various courts? Or will it be an argued statement about how this goal is believed by parliamentarians to bear on rights issues, one free from references to the courts?
Grant Huscroft and Janet L Hiebert argue that the evidence from comparable jurisdictions points overwhelmingly towards the former — that the lawyers will take over these statements of compatibility too.[53] If they are correct, another of the claimed benefits of a statutory bill of rights will have been enervated.
VII SECTION 6 — APPLICATION
The question here is how far the Victorian Charter of Rights’ influence will spread. Will it apply only to a citizen’s interactions with the state, or will it apply to citizen–citizen matters? Section 6 seems, on its face and when read in conjunction with s 4, to point towards the former. The sort of argument that would likely need to be made to try to effect the latter would involve moving from (1) the premise that the Victorian Charter of Rights applies to the courts, to (2) the conclusion that this Charter must therefore have a bearing on tort, contract, family (and so on) decisions.
This sort of argument is feeble and runs against the plain meaning of s 6. That said, it is not beyond human wit to construct such an argument, no doubt drawing heavily on the s 32 reading down provision (which itself is made applicable to such an argument by s 6(2)(b)).
VIII CONCLUDING REMARKS
Let me conclude this article by moving on from the above comments about what I consider to be the key operative provisions to make a few related observations and predictions. To start, attempts to foreclose in advance what the unelected judiciary will do with a bill of rights, statutory ones included, appear doomed to failure. Huscroft makes this plain.[54] So-called progressivist interpretation techniques together with reading down provisions make attempts to lock in desired future outcomes largely futile. It is not the form of the words you choose[55] so much as the sort of judge you appoint that matters.[56]
One certain effect, though, will be an increased role for lawyers[57] and judges. They will play a much greater role in social policymaking and this will happen largely through their being given the power to decide what the scope and ambit of the enumerated rights is to be, how those same rights are to relate to one another, and what will and will not count as reasonable and justifiable limits on them. To a lesser extent, the fuzziness, amorphousness and indeterminacy that pervades the Victorian Charter of Rights will also amount to an abdication of decision-making power to the point-of-application interpreters of it. Consider, as a sample, these indeterminate, vague tests: ‘compatible with human rights’ (s 1(2)(b)); ‘reasonable … and demonstrably justified’ (s 7(2)); ‘reasonably available’ (s 7(2)(e)); ‘reasonably necessary’ (s 15(3)); ‘unreasonable delay’ (ss 21(5)(b), 25(2)(c)).
Perhaps these negative effects are the price to be paid for a process in which the majority of Victorians has had its say? Alas, we do not know as no-one has asked Victorians what they think. The process leading up to the enactment of the Victorian Charter of Rights certainly did not look anything like such a process. I will be blunt. Had there been a referendum on whether to enact the Victorian Charter of Rights, I am confident it would have failed, and failed badly. I suspect many proponents thought the same. That may be why the choice was made to shun a referendum and opt for a Consultation Committee of the sort described above.[58] Whether that be the case or not, the eventual result of the Consultation Committee process appeared to be a foregone conclusion. That is why many opponents of the Victorian Charter of Rights — at least me, for one — did not bother to waste their time making a submission.
Here is a final suggestion to end this article. If one puts aside the core level democratic illegitimacy objections to the Victorian Charter of Rights, and they are significant objections to my mind, what is left is a set of empirical claims about the likely effects of statutory bills of rights such as this one. Opponents claim those effects will be on balance clearly negative. Proponents claim they will be clearly positive.
So my suggestion to the rest of Australia is to wait 10 to 15 years to see who is correct. One of the core benefits of a federal system is that different jurisdictions can experiment with different policies while the others wait to see if such experiments appear to be positive or negative. Bill of rights proponents are presently pushing other states to copy Victoria and to do so with unseemly haste. They should hold off. Rather than the other states hastily falling in line with Victoria’s experiment, let them wait.
Fifteen years from now I think those other states will be glad they resisted the temptation. But if I am wrong, and the proponents correct, little will have been lost. Let us see who is correct.
[∗] BA, LLB (Queen’s University), LLM (LSE), PhD (Hong Kong); Garrick Professor of Law, The University of Queensland. Thanks to Simon Evans and Grant Huscroft for their comments on an earlier draft of this article.
[1] See, eg, James Allan, ‘Bills of Rights and Judicial Power — A Liberal’s Quandary?’ (1996) 16 Oxford Journal of Legal Studies 337; James Allan, Sympathy and Antipathy: Essays Legal and Philosophical (2002); James Allan, ‘Rights, Paternalism, Constitutions and Judges’ in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 29; James Allan, ‘Oh That I Were Made Judge in the Land’ (2002) 30 Federal Law Review 561; James Allan, ‘Paying for the Comfort of Dogma’ [2003] SydLawRw 4; (2003) 25 Sydney Law Review 63; James Allan, ‘A Modest Proposal’ (2003) 23 Oxford Journal of Legal Studies 197; James Allan, ‘An Unashamed Majoritarian’ (2004) 27 Dalhousie Law Journal 537; James Allan, ‘Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century’ (2006) 17 King’s College Law Journal 1; James Allan, ‘Thin Beats Fat Yet Again — Conceptions of Democracy’ (2006) 25 Law & Philosophy 533.
[2] Jeremy Waldron is most famous for his attack on bills of rights and the strong judiciaries they engender. He has written extensively about how such instruments fail to take seriously the right to participate in social decision-making, including decisions about rights and about how rights ought to play out, rank against one another and when limitations are reasonable. In brief, Waldron has turned the strong rights-based arguments grounded in autonomy and equality — arguments relied on by most bill of rights supporters — back on those same people who defend the privileged position such instruments afford to unelected judges. A starting point in reading Waldron would be the following three pieces: Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18; Jeremy Waldron, Law and Disagreement (1999); Jeremy Waldron, ‘The Core of the Case against Judicial Review’ [2006] YaleLawJl 35; (2006) 115 Yale Law Journal 1346.
[3] Human Rights Consultation Committee, Department of Justice, Victoria, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 191.
[4] The Consultation Committee was chaired by Professor George Williams of the University of New South Wales Law School. Professor Williams has written extensively in favour of bills of rights: see, eg, George Williams, A Bill of Rights for Australia (2000) 54, where he urged, six full years before being appointed to the Consultation Committee, the adoption of the following strategy:
It is very unlikely that a more robust proposal for a Bill of Rights in the Constitution could succeed without some process of familiarisation for the players in the political process and the community. Over time, a statutory Bill of Rights enacted by the Federal Parliament and supervised through the parliamentary committee system, perhaps supplemented or even preceded by statutory Bills of Rights enacted by State and Territory governments, would contribute positively to a rights culture within Australian society.
[5] The three other Consultation Committee members were Rhonda Galbally, Andrew Gaze (the wonderfully talented basketballer) and Professor Haddon Storey.
[6] In the Draft Charter of Rights these were ss 39 and 40, which in the Victorian Charter of Rights correspond to ss 38 and 39 (though the latter has been rewritten and narrowed).
[7] Victorian Charter of Rights s 32 (emphasis added).
[8] New Zealand Bill of Rights Act 1990 (NZ) s 6 (emphasis added).
[9] Human Rights Act 1998 (UK) c 42, s 3(1) (emphasis added).
[10] See SI by his next friend CC v KS by his next friend IS [2005] ACTSC 125; (2005) 195 FLR 151, 154 (Higgins CJ), where the Chief Justice of the Australian Capital Territory, using the Human Rights Act 2004 (ACT), does just that. See also Hilary Charlesworth, ‘Who Wins under a Bill of Rights?’ [2006] UQLawJl 4; (2006) 25 University of Queensland Law Journal 39, in which even Professor Hilary Charlesworth, a moving force behind the Human Rights Act 2004 (ACT), comments critically on this decision. She says: ‘This case is an unsatisfactory one … it emphasises a judicial responsibility to reshape the clear legislative text’: at 50 (emphasis added).
[11] [2004] UKHL 30; [2004] 2 AC 557 (‘Ghaidan’).
[12] Ibid 571–2.
[13] See Allan, ‘Portia, Bassanio or Dick the Butcher?’, above n 1, where I defend the claim that advocating such an interpretive approach (leave aside its anti-rule of law qualities) is revolutionary; see also James Allan, ‘The Paradox of Sovereignty: Jackson and the Hunt for a New Rule of Recognition?’ (2007) 18 King’s College Law Journal (forthcoming).
[14] Ghaidan [2004] UKHL 30; [2004] 2 AC 557, 573.
[15] Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27.
[16] See further James Allan, ‘Turning Clark Kent into Superman: The New Zealand Bill of Rights Act 1990’ [2000] OtaLawRw 3; (2000) 9 Otago Law Review 613.
[17] [2000] NZCA 403; [2001] 2 NZLR 37 (‘Pora’). For an excellent, and scathing, analysis of this judgment, an analysis that comes to the conclusion that these three judges’ views undermine the rule of law, see Jim Evans, ‘Questioning the Dogmas of Legal Realism’ [2001] New Zealand Law Review 145, 166.
[18] Three other judges disagreed, Gault, Keith and McGrath JJ (Keith J delivered the judgment: at 52). The seventh, the President of the Court, decided the case on other grounds (Richardson P: at 52).
[19] See above nn 7–9 and accompanying text.
[20] See James Allan and Grant Huscroft, ‘Constitutional Rights Coming Home To Roost? Rights Internationalism in American Courts’ (2006) 43 San Diego Law Review 1, for a much fuller argument as regards this likely ratchet-up effect. Here, simply observe that rights-based internationalism involves no constraints comparable to stare decisis — the judges are free to pick and choose the overseas cases they will find persuasive or will ignore. See James Allan, Grant Huscroft and Nessa Lynch, ‘The Citation of Overseas Authority in Rights Litigation in New Zealand: How Much Bark? How Much Bite?’ (2007) 11 Otago Law Review (forthcoming), for a more empirical look at this question in the New Zealand context.
[21] See Lon L Fuller, ‘The Case of the Speluncean Explorers’ (1949) 62 Harvard Law Review 616, 631–7, citing the hypothetical judgment of Keen J.
[22] Victorian Charter of Rights s 36(2) (emphasis added).
[23] Draft Charter of Rights s 37.
[24] Draft Charter of Rights s 37(2) (emphasis added).
[25] Personally, I think such claims highly implausible. See Jeremy Waldron, ‘Some Models of Dialogue between Judges and Legislators’ in G Huscroft and I Brodie (eds), Constitutionalism in the Charter Era (2004) for an attack on the very plausibility, coherence and likelihood of any judicial–legislative dialogue.
[26] See below Part V for a discussion of s 7.
[27] See RJR-Macdonald Inc v A-G (Canada) [1995] 3 SCR 199.
[28] Cf Hill v Church of Scientology [1995] 2 SCR 1130; New York Times v Sullivan, [1964] USSC 40; 376 US 254 (1964); Reynolds v Times Newspapers Ltd [2001] 2 AC 127; Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385. And note that the judges end up drawing different lines in these four jurisdictions.
[29] Cf RAV v City of St Paul, [1992] USSC 99; 505 US 377 (1992); R v Keegstra [1990] INSC 224; [1990] 3 SCR 697. Again, different lines were drawn.
[30] See F L Morton, ‘Dialogue or Monologue?’ [1999] Policy Options 23, 23 (emphasis in original), where Morton characterises the claim that the Canadian Charter of Rights and Freedoms (which includes a s 33 override not overly dissimilar to the s 31 one in the Victorian Charter of Rights) gives rise to a ‘dialogue’ this way:
[This] definition of ‘dialogue’ is self-serving. Obeying orders is not exactly what most of us consider a dialogue. If I go to a restaurant, order a sandwich, and the waiter brings me the sandwich I ordered, I would not count this as a ‘dialogue.’ Yet this is how [some proponents of the concept] count as dialogue any legislative response to the judicial nullification of a statute.
[31] Francesca Klug and Keir Starmer, ‘Standing Back from the Human Rights Act: How Effective Is It Five Years On?’ [2005] Public Law 716, 721 (emphasis added) (citations omitted) (note that the authors see this as a good thing).
[32] See Jeffrey Goldsworthy, ‘Judicial Review, Legislative Override and Democracy’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 263; Grant Huscroft, ‘Rights, Bills of Rights, and the Role of Courts and Legislatures’ in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 12; Waldron, ‘The Core of the Case against Judicial Review’, above n 2.
[33] See below Part IV for a discussion of s 31.
[34] Human Rights Act 1998 (UK) c 42, s 4(2).
[35] Victorian Charter of Rights s 36.
[36] Waldron, ‘Some Models of Dialogue’, above n 25, 39.
[37] See above nn 22–4 and accompanying text, where I give the relevant provisions in more detail.
[38] Victorian Charter of Rights s 36.
[39] Draft Charter of Rights s 37.
[40] Victorian Charter of Rights s 36(2).
[41] Victorian Charter of Rights s 31(1) (emphasis added).
[42] That said, when people are asked why committees of ex-lawyers might be thought to have superior moral perspicacity or why these same lawyers might make competent policymakers, I have yet to hear a halfway convincing response.
[43] This is not wildly improbable speculation. In Canada, the Supreme Court Justices regularly point to their s 33 ‘notwithstanding’ or override clause — the one that has never once been used at the federal level — as evidence that they can be more activist than they otherwise would: see, eg, Sauve v Canada [2002] 3 SCR 519. See also Grant Huscroft, ‘A Constitutional “Work in Progress”? The Charter and the Limits of Progressive Interpretation’ in G Huscroft and I Brodie (eds), Constitutionalism in the Charter Era (2004) 433.
[44] The attempt in s 7(2)(a)–(e) to render what counts as reasonable more definite appears to be either naïve or disingenuous. Listing these sort of factors (for example, ‘the importance of the purpose’, ‘the nature of the right’ and ‘any less restrictive means reasonably available’) as relevant considerations advances the cause of certainty not one whit. A decent lawyer could drive a truck through this list.
[45] Canadian Charter of Rights and Freedoms s 1; New Zealand Bill of Rights Act 1990 (NZ) s 5. New Zealand’s was a copy of Canada’s.
[46] The US has a constitutionalised bill of rights but no abridging provision. Does anyone, seriously, think that the American judges therefore treat rights as absolutes — that you can walk into a cinema and yell ‘fire’ and after the ensuing chaos rely on your right to free speech? Of course not. The difference between Canadian and US treatments of rights is that in Canada judges’ analyses are a two-step process (Does the right apply? Is the limit reasonable?) whereas in the US the analysis is a one-step process in which deciding whether the right applies subsumes the question of whether its application would be reasonable. See generally James Allan, ‘The Author Doth Protest Too Much, Methinks — A Review of The Supreme Court On Trial: Judicial Activism or Democratic Dialogue, by Kent Roach’ (2003) 20 New Zealand Universities Law Review 519; Allan, ‘An Unashamed Majoritarian’, above n 1.
[47] See above Part II for a discussion of s 32.
[48] See Ministry of Transport v Noort [1992] NZCA 51; [1992] 3 NZLR 260; Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9. The New Zealand abridging enquiry provision had been a leftover when the earlier constitutionalised bill of rights proposal had been jettisoned in favour of a statutory model: see New Zealand Bill of Rights Act 1990 (NZ) s 5. See also Paul Rishworth et al (eds), The New Zealand Bill of Rights (2003).
[49] See Allan, ‘Turning Clark Kent into Superman’, above n 16.
[50] See Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9.
[51] Cf Grant Huscroft, ‘The Attorney-General’s Reporting Duty’ in Paul Rishworth et al (eds), The New Zealand Bill of Rights (2003) 195.
[52] See Draft Charter of Rights s 27. This section applied only to government Bills. The following section in the Draft Charter of Rights applied to non-government Bills, but used ‘may prepare’ rather than ‘must prepare’. The New Zealand reporting duty concerns only violations, which differs slightly from reporting consistency.
[53] See Grant Huscroft, ‘Is the Defeat of Health Warnings a Victory for Human Rights? The Attorney-General and Pre-Legislative Scrutiny for Consistency with the New Zealand Bill of Rights’ (2003) 14 Public Law Review 109; Janet L Hiebert, ‘New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?’ (2004) 82 Texas Law Review 1963.
[54] See Grant Huscroft, ‘The Trouble with Living Tree Interpretation’ [2006] UQLawJl 2; (2006) 25 University of Queensland Law Journal 3.
[55] For three examples of the drafters of the Victorian Charter of Rights trying to lock in certain outcomes, see s 15(3)(b): where the mention of ‘public health’ is an attempt to forestall RJR-Macdonald Inc v A-G (Canada) (1995) 3 SCR 199 type outcomes, and a misguided one at that as that case turned on minimal impairment of rights not on a failure to give weight to public health concerns; s 39(3): which attempts to foreclose money damages for breaches of the Victorian Charter of Rights, but leaves open aggravating or increasing other tort awards due to Charter breaches; and s 48: which tries to insulate abortion from the right to life.
[56] See, eg, Letter from Justice Barry Strayer to James Allan, 7 February 2006 (copy on file with author), where Strayer J, now retired from the Federal Court of Appeal of Canada, wrote, inter alia:
While I was one of those who worked long and hard while a federal official to get the [Canadian] Charter adopted, I have been distressed at times to see how it has been applied by the Supreme Court. As I have noted on various occasions, some of the outcomes are far removed from what most of the political actors could have contemplated at the time they approved it …
Notice, too, that the judges you do appoint will be — or should be — influenced by the mandate they perceive the bill of rights has received. In the case of Victoria it amounts to having been passed on a party political basis, with no referendum.
[57] In New Zealand there are at least 12 full-time government lawyers dedicated to matters arising from their statutory bill of rights, and that is just those concerned with it on a full-time basis. Moreover, that sort of measure ignores the harder to measure costs related to lesser certainty of outcome — think of criminal procedure cases to give one example. Law professors will also gain, at least in terms of being able to publish myriad articles and books related to the bill of rights and to travel to international conferences to talk about them. (And I should know.)
[58] Consider whether the Consultation Committee process used to bring the Victorian Charter of Rights into existence measured up to the s 18(1) Charter right ‘to participate in the conduct of public affairs’.