1. Interpretation, reasonable limits and remedies Associate Professor Simon Evans Law Institute of Victoria: Victorian Charter of Human Rights and Responsibilities 18 May 2007

2. Outline 1. Interpretation Section 32 2. Reasonable limits Section 7 3. Remedies Section 36, 39

3. Interpretation

4. 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))

5. 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.

6. Interpretation: the problems The parents of a child are jointly responsible for having the childs 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.

7. 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

8. 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 …

9. 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

10. 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 …

11. Approaches to applying the interpretive provisions

12. Approaches Unlikely to be a single approach that suits all cases

13. 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).

14. 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))

15. 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])

16. 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.

17. 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

18. UK approach Ghaidan v Godin-Mendoza [2004] 2 AC 557 summarised in Beaulane Properties Ltd v Palmer [2005] 3 WLR 554, 611–612:

19. 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].

20. 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].

21. 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

22. 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

23. 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

24. '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

25. 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

26. Reasonable limits

27. 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.

28. 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

29. Comparative material Section 7 is based on section 1 of the Canadian Charter section 36 of the South African Bill of Rights

30. 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 governments legislation and its objective? Does the governments 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))

31. Comparative material Different from the Canadian Oakes test Relevant factors, not cumulative elements But Oakes helps understand the logic of section 7

32. Limitations under law Statute and common law Unenumerated powers of executive government or positive authorisation? Vagueness, imprecision, arbitrariness

33. 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 27http://ssrn.com/abstract=971024 The limits of evidence: policymaking under conditions of uncertainty

34. 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

35. 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

36. Remedies

37. 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?

38. 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.

39. 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.

40. Remedies for breach of human rights simpliciter New Zealand: Baigent USA: Bivens UK: HRA section 8 Victoria: No remedy eg breach of privacy

41. 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)

42. 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.

43. 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

44. Issues Relying on unlawfulness as an element of a cause of action A need for double actionability? (No.)

45. 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 http://cccs.law.unimelb.edu.au