A Territory Human Rights Act

							      Interpretation,
reasonable limits and
            remedies

Associate Professor Simon Evans


                  Law Institute of Victoria:

  Victorian Charter of Human Rights and
                         Responsibilities

                             18 May 2007
Outline
1.   Interpretation
        Section 32

2.   Reasonable limits
        Section 7

3.   Remedies
        Section 36, 39
Interpretation
The interpretive provision

   ‘[s]o 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’ (s 32(1))
Interpretation: the problems
   [A] member of the police force, without warrant, may
    search a person … for a volatile substance … if the
    member has reasonable grounds for suspecting that
    the person—
       (a) is under 18 years of age; and
       (b) has in his or her possession or under his or her control
        a volatile substance or an item used to inhale a volatile
        substance; and
       (c) is inhaling or will inhale a volatile substance.
Interpretation: the problems
   The parents of a child are jointly responsible
    for having the child’s birth registered under
    this Act and must both sign the birth
    registration statement but the Registrar may
    accept a birth registration statement from one
    of the parents if satisfied that it is not
    practicable to obtain the signatures of both
    parents on the birth registration statement.
Interpretation: the problems

   a court shall refuse bail … in the case of a
    person charged with … [certain offences] …
    unless the court is satisfied that exceptional
    circumstances exist which justify the grant
    of bail
Interpretation: the problems

   In determining whether a surveillance device
    warrant should be issued, the judge or
    magistrate must have regard to:
       (a) the nature and gravity of the alleged offence in
        respect of which the warrant is sought; and
       (b) the extent to which the privacy of any
        person is likely to be affected …
The interpretive obligation
   All interpreters are subject to the interpretive
    obligation
   All local legislation is subject to the
    interpretive obligation
       The Charter itself
       Old Victorian legislation
       Ambiguity is not needed
Potential impact
   No impact –
     Because legislation is consistent with human rights
     Because legislation is inconsistent with human rights but is
       incapable of a consistent interpretation
   Just about any impact –
     Legislation applies to new situations
     Decision-makers may / must have regard to a wider / narrower
       set of considerations
     Government powers may be restricted and conduct may be
       unauthorised
     Onus shifts; new requirement of mens rea …
Approaches to applying the
    interpretive provisions
Approaches

   Unlikely to be a single approach that suits all
    cases
First approach to s 32
1.   Determine the natural meaning of the legislative provision
     according to the standard interpretive (textual, contextual)
     principles.
2.   Does the provision (in its natural meaning) limit any protected
     rights?
3.   If the provision does not limit any protected right, adopt the
     natural meaning (the meaning determined by standard
     interpretive principles).
4.   If the provision does limit protected rights, are the limits on the
     rights demonstrably justified?
5.   If the limits are demonstrably justified, adopt the natural meaning
     (the meaning determined by standard interpretive principles).
6.       If the limits are not demonstrably justified, is the provision
         capable of being interpreted consistently with the protected
         rights?
7.       If the provision is not capable of being interpreted consistently
         with the protected rights (eg because there is a clear legislative
         purpose to limit protected rights), adopt the natural meaning
         and consider making a declaration of inconsistent interpretation
         / declaration of incompatibility.
8.       If the provision is capable of being interpreted consistently with
         the protected rights, adopt the interpretation that best
         accommodates statutory text and purpose and the protected
         rights.
          (Adapted from majority judgments in Hansen v The Queen [2007] NZSC 7 (20
           February 2007))
First approach: rationale
   Section 32 directs interpreters to prefer a meaning consistent
    with the rights and freedoms contained in Part 2 of the Charter.
   But the scope of those individual rights and freedoms is
    constrained by other sections, in particular by the provision for
    justified limits in section 7 (which is in Part 2).
   Most statutes cannot be read completely consistently with the full
    breadth of each and every right and freedom in the Charter.
   Accordingly, it is only those meanings that unjustifiably limit
    guaranteed rights or freedoms that section 32 requires
    interpreters to discard, if the statutory language so permits.
       (Adapted from Hansen v The Queen [2007] NZSC 7 (20 February
        2007) [59])
Second approach to s 32: terms with a
range of meanings on a continuum

1.   Determine the scope of the relevant right or freedom.
2.   Identify the different interpretations of the words of the other Act which
     are properly open.
3.   If only one meaning is properly open that meaning must be adopted.
4.   If more than one meaning is available, identify the meaning which
     constitutes the least possible limitation on the right or freedom in
     question.
5.   Consider whether the meaning adopted limits the relevant right or
     freedom.
6.   Consider whether the extent of any such limitation can be demonstrably
     justified.
Limits of the interpretive
requirement
   Maintaining consistency with legislative purpose
       Levels of abstraction
       Extrinsic materials relevant to identifying purpose
       “a multitude of obscure, uncertain and even apparently conflicting
        purposes” (Avel Pty Ltd)
   An interpretive obligation, not permission to legislate
       Fits into a much larger debate about the limits of statutory
        interpretation in Australia (contrast eg judgments of McHugh [esp
        JA] and Spigelman CJ)
   Interpretation may produce a meaning not ‘intended’ by the
    enacting Parliament
   Legislation with a settled interpretation
UK approach

   Ghaidan v Godin-Mendoza [2004] 2 AC 557
    summarised in Beaulane Properties Ltd v
    Palmer [2005] 3 WLR 554, 611–612:
   The section 3 duty is not dependent upon ambiguity in the
    legislation being interpreted: Lord Nicholls at [29], Lord Steyn at
    [44], Lord Millett at [67]. 

   The section 3 interpretation must be compatible with the
    ‘underlying thrust’ of the legislation being construed: Lord
    Nicholls at [33]. It is not concerned with obligations which,
    properly interpreted, impose an ‘unavoidable obligation to act in a
    particular way’: Lord Rodger at [108]. 
   Any implication of words must ‘go with the grain of the
    legislation’; the insertion of words which contradict the essential
    principles and scope of the legislation being interpreted is
    impermissible: Lord Rodger at [121]–[122]. 

   The court should not embark on considering matters calling for
    legislative deliberation: Lord Nicholls at [33]. It could not create a
    ‘wholly different scheme’: Lord Rodger at [148]. 
   The mere fact that the language under
    consideration is inconsistent with a
    convention-compliant meaning does not
    make a Convention-compliant meaning under
    section 3 impossible: Lord Nicholls at [32].
    Probably 
   The section 3 duty is the ‘principal remedial
    measure’ and a making of a declaration of
    incompatibility is a ‘measure of last resort’: Lord
    Steyn, at [39]. Unclear

   There is a ‘strong rebuttable presumption’ in favour
    of an interpretation consistent with convention
    rights: Lord Steyn at [50]. Probably 
   The application of section 3 should not depend critically upon ‘the
    particular words adopted by the parliamentary draftsman in the
    statutory provision under consideration’: Lord Nicholls at [31].
    There should not be ‘an excessive concentration on linguistic
    features of the particular statute’: Lord Steyn at [41]. Debatable

   The statute must be given a meaning ‘which, however unnatural
    or unreasonable, is intellectually defensible … it can do
    considerable violence to the language and stretch it almost (but
    not quite) to breaking point’: Lord Millett at [67]. Probably 
   'Judicial vandalism' is to be gauged by
    reference to the change in the substance of
    the obligation imposed by the provision, not
    by reference to any ‘mere matter of linguistic
    form’: Lord Rodger at [110]–[111]. Probably
    
Issues
   Application of old legislation to pre-commencement
    events
   Federal legislation and other non-local legislation
   Legislation governing private relationships and
    corporations
   Rights may have to be engaged on the facts
   Delegated legislation
Reasonable limits
The limitation provision
   Section 7
   (2) A human right may be subject under law only to such
    reasonable limits as can be demonstrably justified in a free and
    democratic society based on human dignity, equality and
    freedom, and taking into account all relevant factors including—
     (a) the nature of the right; and
     (b) the importance of the purpose of the limitation; and
     (c) the nature and extent of the limitation; and
     (d) the relationship between the limitation and its purpose; and
     (e) any less restrictive means reasonably available to achieve the
       purpose that the limitation seeks to achieve.
Relevance of limitation
   Interpretation:
       Section 32 requires interpreters to prefer an interpretation
        that imposes only justified limits on rights
       Section 36 allows a declaration of inconsistent
        interpretation when a law can only be interpreted to impose
        an unjustified limit on rights
   Conduct
       Section 38 requires public authorities to act in a way that is
        compatible with justified limits on human rights
Comparative material

   Section 7 is based on
       section 1 of the Canadian Charter
       section 36 of the South African Bill of Rights
Comparative material
   “The Oakes test may be formulated as two main tests with subtests
    under the second branch, but it may be easier to think of it in terms of
    four independent tests. If the legislation fails under any one test, it
    cannot be justified. The four tests ask the following questions:
       Is the objective of the legislation pressing and substantial?
       Is there a rational connection between the government’s legislation and its
        objective?
       Does the government’s legislation minimally impair the Charter right or
        freedom at stake?
       Is the deleterious effect of the Charter breach outweighed by the salutary
        effect of the legislation?” (Canada (Attorney General) v Hislop [2007] SCC
        10 (1 March 2007))
Comparative material

   Different from the Canadian Oakes test
       Relevant factors, not cumulative elements
       But Oakes helps understand the logic of section 7
Limitations ‘under law’

   Statute and common law
   Unenumerated powers of executive
    government or positive authorisation?
   Vagueness, imprecision, arbitrariness
Limitations that are demonstrably
justified

   “The power to balance and override [protected] rights, then, is essentially
    one that belongs to the political institutions. The role of the courts is to
    subject the balancing done by the political institutions to the appropriate
    type of judicial review when it results in the overriding of a [protected] right.
    … Moreover, although courts review the exercise of the [power to limit
    rights], … judicial review of governmental balancing does not necessarily
    require the courts themselves to engage in balancing.”
       Stephen A Gardbaum, “Limiting Constitutional Rights” (2007) 54 UCLA Law
        Review, http://ssrn.com/abstract=971024 at 27


   The limits of evidence: policymaking under conditions of uncertainty
Relevant factors
   ‘A free and democratic society’

   The nature of the right
   The importance and purpose of the limitation
   The nature and extent of the limitation
   The relationship between the limitation and its purpose
   Any less restrictive means reasonably available to achieve the
    purpose that the limitation seeks to achieve
Limits on rights: using international
and comparative materials

   OK if done carefully:
       identify approach
       identify relevant factors
   More problematic:
       identifying less restrictive alternatives
           especially beware Canadian cases insisting on the least
            restrictive alternative – cf reasonably open alternatives
   Deeply problematic:
       making the ultimate judgment whether a limitation is reasonably
        justified
Remedies
Remedies

   Declarations of inconsistent interpretation
   Remedies for breach of human rights
    simpliciter
   Remedies for unauthorised conduct
   Remedies for conduct that is unlawful under
    section 38
       A need for double actionability?
Declarations of inconsistent
interpretation
   Section 36(2)
     “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.”
          No free standing applications for these statutory declarations
   Section 36(5):
     A declaration of inconsistent interpretation does not—
          (a) affect in any way the validity, operation or enforcement of the
           statutory provision in respect of which the declaration was made; or
          (b) create in any person any legal right or give rise to any civil cause
           of action.
Section 39 remedies
   39. Legal proceedings
   (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.
   (2) This section does not affect any right that a person has, otherwise than because of this
    Charter, to seek any relief or remedy in respect of an act or decision of a public authority,
    including a right—
       (a) to seek judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of
        the Rules of the Supreme Court; and
       (b) to seek a declaration of unlawfulness and associated relief including an injunction, a stay of
        proceedings or exclusion of evidence.
   (3) A person is not entitled to be awarded any damages because of a breach of this
    Charter.
   (4) Nothing in this section affects any right a person may have to damages apart from the
    operation of this section.
Remedies for breach of human
rights simpliciter

   New Zealand: Baigent
   USA: Bivens
   UK: HRA section 8

   Victoria: No remedy
       eg breach of privacy
Remedies for unauthorised
conduct
   Interpretation (section 32) may reduce the scope of conduct that is
    authorised.
   Conduct may then be unlawful:
       Ultra vires
       Breach of a statutory provision (outside the Charter)
       Tortious
   Leading to remedies:
       Judicial review
       Appeal
       Statutory remedies
       Tortious remedies (including damages)
   These remedies are not affected by the Charter:
       Section 39(2), 39(4); not affected by section 39(3)
   39. Legal proceedings
   (2) This section does not affect any right that a person has, otherwise
    than because of this Charter, to seek any relief or remedy in respect of
    an act or decision of a public authority, including a right—
       (a) to seek judicial review under the Administrative Law Act 1978 or under
        Order 56 of Chapter I of the Rules of the Supreme Court; and
       (b) to seek a declaration of unlawfulness and associated relief including an
        injunction, a stay of proceedings or exclusion of evidence.
   (4) Nothing in this section affects any right a person may have to
    damages apart from the operation of this section.
Remedies for conduct that is
unlawful under section 38

   Supplying the element of unlawfulness for non-
    Charter remedies / causes of action
       Declaration of unlawfulness
       Judicial review remedies
       Exclusion of evidence, stays
       No damages (including no aggravated, exemplary or
        punitive damages)
         But non-damages remedies for torts: injunction, declaration
Issues

   Relying on unlawfulness as an element of a
    cause of action
   A need for double actionability? (No.)
Remedies
   Further reference:
       Simon Evans and Carolyn Evans, ‘Legal Redress
        under the Victorian Charter of Rights And
        Responsibilities’ (2006) 17 Public Law Review
        264-281
   More:
       http://cccs.law.unimelb.edu.au; conference
        25 September 2007