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Transition trouble

Feature Articles

Cite as: (2008) 82(7) LIJ, p. 54

Victoria’s Human Rights Charter is marred by a poorly conceived transitional provision exempting some proceedings from its operation.
The Charter itself should be applied to reinterpret this provision.

By Dr Jeremy Gans

The Charter of Human Rights and Responsibilities Act2006 (Charter), which commenced on 1 January 2007, is now fully operational. The two divisions that will most affect legal professional life – the regimes for “interpretation of laws” and “obligations on public authorities” – both started on 1 January 2008: s2(2).

Section 49 contains transitional rules for the new regimes. Sub-section (1) provides that the interpretation regime applies to all laws, past, present or future. By contrast, sub-s(3) restricts the obligations regime to conduct that occurs after 1 January 2008.

Alas, there is also a confusing third rule in sub-s(2): “This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2”. This short rule is arguably the Charter’s most poorly conceived provision.1 The difficulties s49(2) creates for Victorian litigants and courts are not limited to the short term.

“ ... before the commencement of Part 2”

Section 49(2) was misapplied by a Victorian court within a month of the Charter’s full commencement.

In Ragg v Magistrates’ Court of Victoria & Corcoris,2 Bell J observed that the judicial review proceedings before him were “issued ... on 21 December 2007 ... before the commencement of the relevant provisions of the Charter ... which was 1 January 2008. By the transitional provisions in s49(2), the Charter ‘does not affect’ the proceeding” (at [36]).3 However, Part 2 commenced on 1 January 2007: s2(1). The Charter’s Explanatory Memorandum makes the exact same error, misinforming its readers that s49(2) “restricts the application of the Charter to legal proceedings commenced before 1st January 2008”. The correct date is, of course, a year earlier.

There is more going on here than just incorrect readings of a statute. The commencement of Part 2 of the Charter – which sets out Victorians’ human rights – was symbolically momentous but had no legal effect. Rather, all the Charter provisions that could possibly affect courts started a year later.4 If s49(2)’s purpose is to avoid the confusion of a mid-proceedings change of the applicable law, it clearly exempts the wrong proceedings from the Charter. It seems that the drafters failed to update the Consultative Committee’s draft of the Charter after a decision to delay the commencement of the interpretation regime by a year.5

This drafting slip reflects a much deeper flaw in s49(2): applying a single rule to all proceedings that straddle a particular date is a breathtakingly simplistic approach to the issue of transition. The Charter is a complex statute whose potential effects are wide and highly diverse, potentially widening, narrowing or altering substantive and procedural rules, as well as new sui generis processes such as court declarations of inconsistent interpretation. Moreover, not only did it have a staggered commencement, but its regulations allow for further staggering.6 A one-size-fits-all approach is inappropriate, even had the drafters selected the correct size.

The Charter’s transitional provision can be tellingly contrasted with the statutes that governed transition to the equally momentous (albeit much narrower) uniform evidence legislation, which provided for an array of different transitional rules for particular provisions and scenarios.7 Section 49(2) offers neither the flexibility of the common law nor the care of such statutes. As will be seen, it also lacks the clarity of both.

“ ... any proceedings ... ”

In Ragg, Bell J regarded the relevant “proceedings” before him as a judicial review application. However, judicial review doesn’t occur in a vacuum. The review was of a magistrate’s decision in a second proceeding: an “abuse of process” application. That application in turn concerned another proceeding: a registrar’s decision to issue a summons for documents, which in turn followed an application by a party to a fourth proceeding: a criminal prosecution for tax evasion.8 Which is the relevant “proceeding” for the purposes of s49(2)?

The word “proceedings” – which s49(2) doesn’t define – straddles many possible meanings. Bell J apparently used the narrowest view that treats “any action or step in an action” as a separate proceeding.9 The broadest alternative is that a proceeding includes any “incidental proceeding in the course of, or in connexion with, a proceeding”,10 meaning that the relevant proceeding before Bell J was actually the underlying criminal prosecution. The meaning of transitional provisions depends on the particular legislative context, which is why the myriad interpretations that courts have developed in other cases are not determinative here.11

The most relevant precedent is, of course, another human rights statute. Of the various comparative examples, only the Human Rights Act1998 (UK) has a transitional provision relating to proceedings. In contrast to s49(2)’s blanket exemption, the UK Act’s s22(4) sensibly provides that certain “proceedings” can be retroactively affected by the Act. Interpreting s22(4), the House of Lords eventually decided that a trial and an appeal are a single proceeding as “[t]o treat them as separate proceedings would lead to irrational and capricious results”.12 The Court of Appeal similarly held that “it would be quite extraordinary if the 1998 Act conferred on claimants who proceeded by means of an application for judicial review, a substantive advantage not open to claimants proceeding by action”.13More generally, UK courts have decried the use of “satellite litigation” to seek human rights remedies in the midst of an ongoing proceeding.14

To avoid a fragmented application of s49(2), the word “proceedings” should be read in its broadest sense. So, the judicial review action before Bell J should be treated as merely a component of the underlying criminal prosecution; that tax prosecution and all proceedings incidental to it would thus fall within the s49(2)’s exemption from the Charter. A narrower reading would reduce the section’s impact, but at the price of making it more capricious.

“ ... commenced or concluded ... ”

The word “commenced” (we can fortunately ignore the redundant “or concluded”) is no less ambiguous. The underlying proceedings in Ragg – the prosecution of businessman Nicholas Corcoris – dates back to a 2002 joint ATO/AFP investigation. However, his committal has been repeatedly delayed, and when Bell J made his ruling Mr Corcoris was yet to be arraigned. When in the past six years – if at all15 – did the proceedings against him commence?

Mercifully, this question is dealt with in both a Victorian judgment and the Charter’s Explanatory Memorandum. In R v Williams,16 King J rejected the defendant’s request to adjourn his murder hearing until the Charter came into operation because, she held, s49(2) meant that his trial would never be affected by the Charter(at [40]-[48]). She reasoned that criminal prosecutions start when defendants are charged, as that is when their fair hearing rights accrue. Her reading is supported by s25’s Explanatory Memorandum, which states that s25 should be “read together with” s49(2). So, in Ragg the proceedings started when Mr Corcoris was charged with tax evasion on 13 December 2004. Bell J’s ruling that s49(2) applied was thus correct, even though his reasoning is open to debate.

Some ambiguity remains under King J’s approach. First, it is not clear whether s49(2) still applies if new charges are added after 1 January 2007.17 Second, “charged” in s25 is not necessarily the familiar Victorian procedure. In human rights documents, procedural terms have meanings that are “autonomous” of local usage, so comparative courts have instead defined “charged” according to a question of substance: when was the defendant first “substantially affected” by an investigation?18 In Mr Corcoris’ case, that may have been some time in 2002. Paradoxically, the earlier a defendant’s s25 rights accrue, the more proceedings will be subject to s49(2)’s removal of those same rights.

The definition of “commenced” brings the unfortunate nature of s49(2) into sharp relief. Victorian defendants charged in the dying days of 2006 – such as a naturopath charged with 150 sexual offences on 29 December19 – cannot rely on the Charter in any later proceedings, including trials, appeals and retrials years after the Charter commenced. By contrast, defendants charged in early 2007 – including several Victorians charged with murder in the first week of January in relation to deaths in the last week of December20 – will receive the full suite of Charter benefits. Ironically, these include the Charter right to a speedy trial, which has already benefitted a Victorian charged in late 2007,21 but which s49(2) forever denies to defendants like Mr Corcoris, whose trial was already long overdue by that time.

“The Charter does not affect ... ”

From this year on, Victoria’s courts will be reinterpreting the state’s legislation and providing remedies for public authorities’ failures to fulfil their new obligations under the Charter.

However, proceedings captured by s49(2) will have to be conducted as if the Charter never existed. Parties, lawyers and judges alike will have to ignore, or even reverse, any transformations going on outside their courtroom, whether incremental or revolutionary, including potential changes to the criminal procedural law on bail, trial processes, sentencing and appeals. Presumably, some time in the next couple of years, two defendants in a Victorian court will have a bemused conversation about how their simultaneous trials for identical Victorian offences are nevertheless governed by significantly different legal systems.

Other human rights statutes have been introduced without this degree of disparity. The UK courts developed a rule of reason for proceedings that fell outside their Act’s narrow transitional provision: the Act applies to post-commencement proceedings founded on a pre-commencement event unless doing so will “produce an unfair result for one party or the other”.22 This principle, drawn from both the common law and the fair hearing right that the Act itself promotes, requires an approach that varies according to the particular legal effect in question and the party relying on it.

In civil trials involving pre-commencement events, the substantive law won’t change unless the relevant civil entitlement vested post-commencement.23 By contrast, in criminal cases the defendant will typically be able to benefit from the full retrospective operation of the Act, as “[t]he prosecution does not have an accrued or vested right in any sense”.24 In all cases, there would typically be no unfairness in applying procedural changes from commencement. Not only are these rules clearly sensible, but they also ensure that transitional disparities quickly diminish as time passes.

In any other year, this article would conclude with a presumably fruitless call for urgent amendment to s49(2). However, this year there is another option: s32 of the Charter, which requires courts to give all Victorian statutes a rights-compatible reading if possible and, in particular, permits them to consider relevant overseas precedents like those in the UK. While s32’s interpretation mandate clearly extends to the Charter itself, applying it to s49(2) would require a ruling that a provision that merely denies legal remedies for breaches of some people’s rights can be incompatible with those rights. Such an argument must overcome the considerable difficulty that the rights in Part 2 of the Charter do not include a general right to a legal remedy.25

Using s32 to interpret “affect” in s49(2) as meaning “affect in a way that is unfair to a party to the proceedings” would also require further findings. Is s49(2) subject to s32 (rather than the reverse)? Does s49(2)’s capriciousness go beyond the “reasonable limits” on rights that s7(2) of the Charter permits? Is the UK approach consistent with the purpose of s49(2)? And is it a credible interpretation of the word “affect”? These are difficult issues, but answering “yes” to all four certainly isn’t out of the question. Applying s32 in this way – or, failing that, issuing a declaration of inconsistent interpretation with respect to s49(2) – would clearly be a bold step, but the reward for Victorians in general and litigants in particular would be tremendous.

Section 49(2) is exactly the sort of using-a-sledgehammer-to-crack-a-nut law that the Charter itself is supposed to prevent. While narrowing the section’s scope would be capricious, narrowing its effect in line with the UK approach would be the opposite. Indeed, changing the section’s focus from legal effects to legitimate expectations would better fit the section’s otherwise bewildering application to proceedings that straddle the Charter’s symbolic commencement date, rather than its substantive one.

Moreover, using s32 to achieve this end would promote respect not only for human rights, but also for the careful political balance struck by the Charter. With respect, the same cannot be said for Bell J’s solution in Ragg, where he relied directly on international human rights law to reach the same result that would have followed had the Charter applied to the proceedings before him.26

Conclusion

The Charter’s bold transformation of Victoria’s legal system is unfortunately blighted by an over-broad transitional provision that exempts whole proceedings – the wrong ones – from the whole Charter. The Charter’s own interpretation rule is the best way to give the provision a sensible operation. Charter, heal thyself.

DR JEREMY GANS is an associate professor at Melbourne Law School, specialising in criminal justice. He also advises the Victorian Parliament’s Scrutiny of Acts and Regulations Committee on the Charter and maintains a running commentary on the new statute at http://www.charterblog.wordpress.com.

The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

1. The other contenders for this dubious title are sub-s4(1)(j) (exempting courts’ non-administrative functions from the obligations regime); sub-s6(2)(b) (bewilderingly applying Part 2 of the Charter to courts and tribunals); s35 (a notice provision with no defined consequences: see R v Benbrika & Ors (Ruling no 20) [2008] VSC 80); and s39 (the Charter’s confusingly drafted remedies provision).

2. [2008] VSC 1.

3. The same judge got the date right in Tomasevic v Travaglini [2007] VSC 337, [70].

4. Section 6(2)(b) is an arguable exception. See R v Williams [2007] VSC 2, [51]-[55].

5. Human Rights Consultation Committee, Draft Charter of Human Rights and Responsibilities at http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Your+Rights/Human+Rights/Consultation+Process/ (24 February 2008), cl 2(1).

6. Section 46(4)(a), e.g. Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007, s5.

7. For example, Evidence (Consequential and Other Provisions) Act 1995 (NSW).

8. Magistrates’ Court Act 1989, s43(2).

9. McCauley v McCauley (1996) 22 Fam LR 538, [35].

10. For example, Federal Court of Australia Act 1976 (Cth), s4.

11. See R v Taylor (No 2) [2008] VSCA 5, [32]-[38].

12. MacDonald v Advocate General for Scotland [2004] 1 All ER 339, [23].

13. R (Ben-Abdelaziz) v Haringey London Borough Council [2001] 1 WLR 1485, [31].

14. R v Director of Public Prosecutions; Ex parte Kebilene [1999] 4 All ER 801, 821, 836.

15. See R v Taylor (No 2) [2008] VSCA 5, [38] interpreting a different transitional provision as applying after the presentment is filed or filed-over.

16. [2007] VSC 2.

17. See R v Benbrika & Ors (Ruling no 20) [2008] VSC 80, [16].

18. Deweer v Belgium (1980) 2 EHRR 439, [46].

19. M Cunningham and M Buttler, “150 new sexual charges”, Herald Sun, 30 December 2006, p1.

20. For example, Re Wells [2008] VSC 29.

21. Gray v DPP [2008] VSC 4.

22. Wilson v Secretary of State for Trade and Industry [2003] 3 WLR 568, [20].

23. PW & Co v Milton Gate Investments Ltd [2004] 2 WLR 443, [114]-[115].

24. Note 22 above, at [21].

25. Cf. International Covenant on Civil and Political Rights, Article 2.3(a); R (Ben-Abdelaziz) v Haringey London Borough Council, note 12 above at [22]; and Evans & Evans, Australian Bills of Rights, 2008, LexisNexis, [4.39]

26. Note 2 above, [35]-[44].

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