1. As a barrister practising in Victoria I am interested in three practical aspects of how the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”) may work in practice in the future:

• Will the Charter clothe people with real rights they can use in court?
• What role will the courts play in refining and/or fleshing out the rights contained in the Charter?
• As the Charter stands, are the courts likely to meaningfully engage in the development of human rights law, or will most of this be left to Parliament and to the public service?

2. The short answer is the Charter, in Section 36, gives litigants a right, in limited circumstances, to request the Supreme Court to make a ‘declaration of inconsistent interpretation’. I would like to explain, in simple terms, especially to non-lawyers, how, under the Charter, this process works.

4. The Supreme Court of Victoria is empowered, under the Charter, to hear and determine a point of interpretation concerning the application of rights, and also, to give a more precise definition (within the context of the particular matter before the court) of a specific right set out in the Charter. Rather than explaining how the relevant confusions of the Charter work in Division 3 of Part 3 of the Act, I will try to cover the same ground, perhaps more graphically, by positing a hypothetical example.

5. My wife and I own an orchard in Shepparton. We have an allocation for water for which we are charged annually. The allocation is made by the local water board or public authority. The allocation is made in the name of my wife and me. We own our land, we operate our business as a partnership - in both our names. Some of our neighbours have their water allocations in the name of a company, or the business they run is in the name of a company, or the land they own is held by a company. That is not the situation with us. We own everything as individuals.

6. This year, as usual, we are given an allocation of water. However, for the first time, although we still have to pay for our water allocation, on account of the drought, we are not entitled to draw the allocation. In fact we cannot draw the allocation because there is simply no water to draw, allocation or no allocation. In spite of this, the local water board deploys its statutory powers and /or regulations to charge us for the allocation. Some of our neighbours whinge and complain and then pay for the non-existent allocation. We decide we will not do that. We want to see if the Supreme Court will issue us a declaration of inconsistent interpretation under Section 36 of the Charter. Let’s imagine we take the Charter to court. Lets look at what happens, but limited to the process only.

7. The argument might run as follows:

Let us assume that the relevant local water authority is a “public authority” for the purpose of Section 38 of the Charter. It would be argued that the water authority, and therefore the State of Victoria, is forcing us to pay for something the State is not delivering. In normal commerce, for example, I would never be required to pay for a pair shoes that I ordered, but were never delivered. The State should be in no better position, so the argument goes, especially after the enactment of the Charter. Surely it is a breach of the Charter, we would argue, for the State, through legislation, to be empowered to enforce what amounts to a bogus debt. Surely, therefore, if the State of Victoria uses its legislation to enforce such a bogus debt, then that legislation or regulation, whatever it turns out to be, must be a provision inconsistent with the Charter. This must be grounds for seeking a declaration of inconsistent interpretation.

8. I repeat that I am using this hypothetical example only to explain how the mechanics of the Charter would work. I am not saying that the Supreme Court would, or would not, issue such a declaration. I am using the hypothetical example to demonstrate only the process set out in the Charter in Part 3 Division 3.

9. Firstly, under the Charter, I do not have an independent right to approach the Supreme Court to seek a declaration of inconsistent interpretation. In this case, the question of whether or not the debt, claimed by the water authority is enforceable, must first be a “live issue” within in existing litigation either in a Victorian Court or a Victorian Tribunal. Either forum must already be seized of that very issue, and that very issue must be one that the Court or Tribunal must already be under a duty to determine, for itself, as part of its own, independent decision-making process. This is already a very serious bar to using the Supreme Court as a means of getting our declaration.

10. Assuming the issue arises fair and square, as it were, in the context of an existing case, then one party, in this case my wife and I could apply to the Supreme Court, however, now there is another important qualification. The Court or Tribunal concerned must also consider that the referral is an appropriate one for “determination” by the Supreme Court (see Section 33).

11. Let us go back a step. Under the Charter, I would have to wait for the water authority first to sue me on the alleged debt, either in VCAT, the Magistrates Court, the County Court or the Supreme Court. If the question of the debt arose in those proceedings, then the matter could then go for “determination” to the Supreme Court. Under Section 33(2) the “principal proceeding” in effect would be stayed, or frozen, until the Supreme Court made a decision, whenever that might be.

12. Incidentally, how long would it take for the Supreme Court to make up its mind? I would imagine that in the first place there would be a so-called ‘directions hearing’ in the Supreme Court so parties could exchange a timetable as to when and how the matter would be heard and determined. Once the preliminaries are dealt with, the matter would be set down for a hearing, once the Attorney-General and the Equal Opportunity and Human Rights Commission have each been notified. See Section 36(4)(a). Both must be given a ‘reasonable opportunity’ to intervene. See Section 36(4)(b). If either want to intervene, this may add to the time and cost involved in fixing a hearing date, and may extend somewhat the amount of time the hearing would take. The hearing would proceed like any other hearing of the Trial Division of the Supreme Court. Unless the matters in issue were quite easy to resolve, one would expect the judge to reserve the decision, ie, not come to a decision ‘on the spot’. A decision could take anywhere between a few days and a few months. After the decision, and irrespective of the outcome in the Supreme Court declaration application, the principal proceeding would continue and the balance of the matter would be heard and determined. The decision of the Supreme Court, limited to declaration alone, could be the subject of an appeal to the Victorian Court of Appeal.

13. Note an important caveat. Once the decision is made in the Supreme Court, it would not affect the outcome of the principal proceeding. What would happen is that the Supreme Court would decide the question, and at best, the result would be a declaration of inconsistency. The decision by the Supreme Court would never result in me being excused from the debt even if the declaration of inconsistent interpretation were to be made. Let us assume therefore that when I didn’t pay for my water allocation, the matter was referred to the County Court. Let us further assume that the court gave its imprimatur for the “debtor-creditor question” to be referred to the Supreme Court. Whether the declaration of inconsistency is made or not, the County Court matter would proceed to hear the balance of the matter, after the Supreme Court has made its determination.

14. It is important to note that under 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 effect of which the provision was made; or

(b) create in any person any legal right or give rise to any civil course of action.

15. Under Section 36(6) the Supreme Court must cause a copy of a declaration of inconsistent interpretation to be given to the Attorney-General. Thereafter the Attorney-General must, as soon as practicable, give a copy of the declaration to the minister responsible for administering the statutory provision in respect of which the declaration was made.

16. Under Section 39, irrespective of the outcome of the declaration proceedings, it does not affect any other right I may have arising out of the principal proceedings or other proceedings: sub-section (2). It does not affect my right to damages: sub-section (4) and it does not ground a right to damages in the event a declaration is made: sub-section (3).

17. In other words, the best that might be expected is that a declaration, if it issues, will not make an ounce of difference to me in my fight with the water authority, but will result in the Attorney either directly or indirectly informing the Parliament that the declaration has been made. See S.36 (6). This may or may not lead to legislative or regulatory change. What is does mean is that the case for change is squarely within the province of Parliament thereafter, not the concern of the courts. The court is simply the umpire.

18. In terms of process, what I have summarized represents the extent of exposure that the court has within the Charter. Thereafter it becomes a matter for Parliament. Under Section 37, within six months of receiving the declaration of inconsistent interpretation, the responsible minister must prepare a written response to the declaration and cause a copy of the declaration to be laid before each House of Parliament and published in the Government Gazette.

19. The other important thing to be born in mind is that the declaration of inconsistent interpretation will not be available where there has been an ‘override declaration’ made under Section 31(1).

20. In conclusion, the best that might be said is that the right to apply for a declaration of inconsistent interpretation is rather ‘hemmed in’ and restricted. Nevertheless it is a start.

21. The present Charter is a compromise: a compromise drawn whereby Parliament and the public service are each likely to play a far more important role than the courts, in the short term, in determining the precise limits of the Charter and the precise shape of rights protected under the Charter. Importantly, however, the courts do have a role. I would not like to see the basic philosophy of the Charter altered, or, indeed the division of labour differently balanced between Parliament and the court. In my opinion the role of the court is correctly drawn.

22. One would expect, however, that as Victorians become more used to the Charter, more of the limitations associated with obtaining a declaration of inconsistent interpretation from the Supreme Court will disappear. Hopefully, this will make the court more accessible, as an inexpensive and quick means of testing and declaring Victorians’ commitment to the protection of human rights.

KURT ESSER (Barrister) Melbourne