‘Proportionality in Comparative Analysis’

Human Rights under the Charter: The Development of Human Rights

Law in Victoria

8 August 2014

Professor Bryan Horrigan BA, LLB (Qld), DPhil (Oxon)Dean, Faculty of Law, Monash UniversityAuthor, Corporate Social Responsibility in the 21st Century (Edward Elgar)Former Consultant, Allens <> Linklaters

1

Overview

• Broader context and politics of proportionality• Victorian Charter provisions on proportionality• Victorian Charter’s proportionality dimensions• Comparative proportionality analysis – judicial

and academic• Framework for two-way interaction between

Victorian Charter and comparative proportionality jurisprudence

2

Broader Context and Politics of Proportionality

3

4

Proportionality – Human Rights Contexts

• ‘Human rights legislation, which declares fundamental rights or freedoms but, recognising that they are rarely absolute, permits limits or restrictions provided they can be “demonstrably justified in a free and democratic society”, is the context in which current jurisprudence on proportionality is most likely to be seen at work.’

• Chief Justice Gleeson in Mulholland v Australian Electoral Commission [2004] HCA 41 at [36]

5

The Problem Defined

• ‘The concept of proportionality has both the advantage that it is commonly used in our jurisdictions in similar fields of discourse, and the disadvantage that, in the course of such use, it has taken on elaborations that vary in content, and that may be imported … into a different context without explanation.’

• Chief Justice Gleeson in Mulholland v Australian Electoral Commission [2004] HCA 41

6

Proportionality – Areas of Law• Judicial review of the constitutionality of legislative and

executive acts:– Eg proportionality in the tests for allowable limits upon

constitutionally protected freedom of political expression under Australian Constitution

• Basis for administrative law review:– Eg 1 proportionality v reasonableness as grounds for judicial

review of administrative action– Eg 2 pervasiveness of proportionality as a basis of judicial

review: see debate in Kennedy v The Charity Commission [2014] UKSC 20 (Lords Mance and Carnwath)

• Rights-limiting decisions under bills/charters of human rights (eg Victoria, ACT, South Africa, UK, Canada, New Zealand)

7

The Politics of Proportionality1. Political legitimacy?: Appropriateness and

leveraging of courts’ rights-limiting decisions trumping others institutions’ rights-limiting decisions

2. Institutional role?: What judicial role is constitutionally/legislatively allowed for rights-limiting decisions?

3. Statutory interpretation?: Role in statutory interpretation by courts v. non-interpretative role by courts (eg declarations of inconsistency) and others (eg rights-compatibility assessments)

8

The Politics of Proportionality4. Analytical tool?: A structured process of decision-making v. an

outcome-determining test (and sub-tests)5. Comparative correspondence?: Coherent body of comparative

proportionality jurisprudence v. fragmented jurisdiction-specific bodies of proportionality law

6. Transnational modelling?: Locating proportionality within model structures for:

i. Constitutional, legislated, and judge-made norms of statutory interpretation

ii. Rights-sensitive compatibility of lawsiii. Rights-limiting decision-making criteriaiv. Declarations of inconsistencyv. In-built limits of particular rightsvi. Reference to relevant comparative body of law for guidance

9

Victorian Charter Provisions

10

The Broader Proportionality Clauses of NZ and Canada

Section 5 of the New Zealand Bill of Rights Act 1990 (NZ):‘… the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

Section 1 of the Canadian Charter of Rights and Freedoms states that:‘The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.’

11

Christian Youth Camps v Cobaw Community Health Services [2014] VSCA 75 per Redlich JA

• ‘The concept of proportionality – the identification and weighting of the conflicting interests and the evaluation of the extent to which the conflict may be minimised by careful choice of means – finds its form in part in s 7(2) of the Charter, which states that rights are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.’

12

Section 7(2) of the CharterSection 7(2) of the Charter of Human Rights and Responsibilities 2006 (Vic) : ‘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.’

Compare: Section 36(1) of the Constitution of the Republic of South Africa Act 1996 (South Africa):‘(1) The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -

(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and its purpose; and(e) less restrictive means to achieve the purpose.’

13

Section 32(1) and its Equivalents (Interpretation Clauses)

Section 32(1) of the Charter of Human Rights and Responsibilities 2006 (Vic):‘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.’

Section 3(1) of the Human Rights Act 1998 (UK):‘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 the Convention rights.’

Section 6 of the New Zealand Bill of Rights Act 1990 (NZ):‘Wherever 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.’

14

Section 32(2) and its Equivalents (Foreign Law Clauses)

Section 32(2) of the Charter of Human Rights and Responsibilities 2006 (Vic):‘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.’

Section 2(1) of the Human Rights Act 1998 (UK) allows courts to take into account any:‘(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights,(b) opinion of the Commission given in a report adopted under Article 31 of the Convention,(c) decision of the Commission in connection with Article 26 or 27(2) of the Convention, or(d) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen.’

Section 39(1) of the Constitution of the Republic of South Africa Act 1996 (South Africa) requires that courts interpreting the bill of rights:‘… (b) must consider international law; and (c) may consider foreign law.’

15

Victorian Charter’s Proportionality Dimensions

16

Proportionality Dimensions I

• #1 Individual Vic Charter rights with in-built limits/elements going to proportionality:– Eg 1: notions of ‘arbitrariness’ implicated in rights to

life (s 9), right to privacy (s 13), and right to liberty/security ( s21)

– Eg 2: assessments of reasonable necessity implicated in freedom of expression (s 15) and humane treatment in detention (s 22)

– Eg 3: aspects of discrimination (eg discriminatory effect of chosen means) implicated in rights of recognition and equality (s 8), protection of families and children (s 17), participation in public life (s 18), due respect for cultural rights (s 19), and rights in criminal proceedings (s 25)

17

Proportionality Dimensions II

• #2 Express limits on Vic Charter rights generally, under the rights-limiting s 7, implicated in:– Rights-sensitive statutory interpretation under s

32(1), according to some Victorian/HCA judges;– Exercise of judicial power under s 36 to make ‘a

declaration of inconsistent interpretation’ about legislation’s rights-incompatibility

– Statements of rights-compatibility under s 28 by Victorian parliamentarians introducing Bills

– Pre-enactment scrutiny for rights-compatibility under s 30 by Victorian Parliament’s Scrutiny of Acts and Regulations Committee

18

Proportionality Dimensions III

• #3 Co-extensive operation in statutory interpretation of :– Ordinary norms of statutory interpretation– Rights-sensitive statutory interpretation under s 32(1)– Principle of legality– Authorised reference to comparative proportionality

jurisprudence under s 32(2)• Query:– Potential reach of proportionality into statutory

interpretation norms and principle of legality– Knock-on effect for post-Momcilovic resolution of the

intermingling of the rights-limiting s7 and rights-sensitive interpretation under s 32

19

Patrick’s Case• ‘(T)he principle of legality is a strong presumption that

legislative provisions are not intended to override or interfere with fundamental common law rights and freedoms and basic rights … Applying this principle to legislation which unmistakably intends some interference to be authorised but the scope of the permitted interference is in issue, it is first necessary to identify the right or freedom which is said to be infringed and consider the importance of the interests which it protects in the particular circumstances. Then it is necessary to identify the nature and extent of the interference by, and the purposes of the statutory provisions in question. If the interference complained of goes beyond what is shown to be reasonably necessary to meet a substantial and pressing need or legitimate aim, the proper interpretation will be that the interference is beyond the scope of the provision.’ (emphasis added)

20

Comparative Proportionality Analysis – Judicial and Academic

21

Four-Stage Proportionality Approach - Academic

• #1 ‘Legitimacy’: Can government lawfully limit this right?• #2 ‘Suitability’: Does the chosen rights-limiting measure (ie

means) rationally relate to chosen policy objectives (ie ends)?

• #3 ‘Necessity’: Is the chosen means (ie means) the least restrictive means for achieving the chosen policy objectives (ie ends)?

• #4 ‘Balancing’ (ie ‘Proportionality in the strict sense’): Do the benefits of this rights-limitation by the chosen means outweigh the costs incurred by infringing the right?

• (Sweet and Matthews, ‘Proportionality Balancing and Global Constitutionalism’, 2008)

22

Four-Stage Proportionality Approach – Judge Barak

• Proportionality’s four aspects of worthiness:– #1 worthiness of governmental objective, assessed in

terms of its rights-sensitivity– #2 first-order worthiness of the chosen means of

achieving that objective, assessed in terms of ‘fit’ as a matter of rationality

– #3 second-order worthiness of the chosen means, assessed in terms of minimal rights-intrusion as a matter of necessity

– #4 third-order worthiness of the chosen means, assessed in terms of the soundness of the relation between the chosen means and ends, as a matter of ‘proper [or due] proportion’

23

Four-Stage Proportionality Approach – Judicial (UK)

• ‘The De Freitas formulation has been applied by the House of Lords and the Supreme Court as a test of proportionality in a number of cases under the Human Rights Act … The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning … The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang.’

• (Lord Reed in Bank Mellat v Her Majesty’s Treasury (No 2) [2013] UKSC 39)

24

Four-Stage Proportionality Approach – Judicial (Can)

• ‘The concept of proportionality finds its roots in ancient and scholastic scholarship on the legitimate exercise of government power. Its modern articulations may be traced to the Supreme Court of Germany and the European Court of Human Rights.’

• ‘This Court in Oakes set out a test of proportionality that mirrors the elements of this idea of proportionality – first, the law must serve an important purpose, and second, the means it uses to attain this purpose must be proportionate. Proportionality in turn involves rational connection between the means and the objective, minimal impairment and proportionality of effects.’ (emphasis added)

• (Chief Justice McLachlin for the Court in A-G of Canada v JTI-Macdonald Corp [2007] 2 SCR 610)

25

Four-Stage Proportionality Approach - Academic

• ‘Although Oakes is recognised as a landmark case, it introduced the four-step proportionality analysis to Canadian law with relatively little fanfare … What is striking is that the Oakes Court made no reference to foreign antecedents of its proportionality analysis, and referenced no other authority. The formula presented in Oakes is so close to the German version of [proportionality analysis] that we presume the Court was familiar with German doctrine. The Canadian Supreme Court does not avoid citing foreign law on principle; indeed, discussions of foreign law are quite common … The silence here suggests that, rather than resting on a foreign pedigree, the [C]ourt wishes to present proportionality as a reasoned and sensible approach to the particular problem posed by Charter rights.’

• (Sweet and Matthews, ‘Proportionality Balancing and Global

Constitutionalism’, 2008)

26

Section 7(2) and Oakes

Sufficient Importance

Rational Connection

Minimal Impairment

Proportionality in the Strict Sense

Warren CJ, DAS v Victorian Human Rights & Equal Opportunity Commission [2009] VSC 381 at [148]

‘paras (a)-(e)… broadly correspond to the proportionality test identified in Oakes’

Bell J, Re Kracke and Mental Health Review Board [2009] 29 VAR 1, cited in PJB v Melbourne Health State Trustees Ltd at [308]

s7(2)(b) s7(2)(d) s7(2)(e) No comment made

Crennan and Kiefel JJ, Momcilovic v R

Ss7(2)(a)-(d) No comment made

S7(2)(e) Ss7(2)(a)-(d)

27

After Momcilovic: the Court of Appeal’s Interpretation of the interaction between ss7(2) and 32(1)

Overall assessment Assessment of split in the High Court Bench

Slaveski v Smith [2012] VSCA 25 (unreported)

Warren CJ, Nettle and Redlich JJA

Warren CJ, Nettle and Redlich JJA (Joint/Unanimous): At [22]: If no ratio arose from Momcilovic on this question, the VSCA could be bound to follow its own decision in Momcilovic unless it is 'clearly wrong’, but ‘[i]t is unnecessary to decide’.

3:4 splitAt [21]: French, Crennan and Kiefel held s7(2) not to inform s32At [21]: Bell, Gummow, Hayne and Heydon held s7(2) does inform s32At [22]: But Hayne and Heydon dissented as to the final orders

Noone (Director of Consumer Affairs Victoria) v Operation Smile (Aust) Inc [2012] VSCA 91 (unreported) Warren CJ, Nettle JA and Cavanough AJA

Warren CJ, Cavanough AJA:At [28]-[29]: ‘there seems to be a 4:3 majority in the High Court that s 7(2) informs the s 32(1) interpretative task.’ But, ‘the dissenting judgments of Hayne and Heydon JJ could not form part of the ratio of Momcilovic and hence there is no ratio on this point in the High Court’At [31] ‘It is unnecessary to decide [whether the VSCA is bound by its Momcilovic decision] in this case’

3:4 splitAt [27]: Precisely the same assessment as Slaveski above

Nettle JA:At [142]: ‘There being no majority view… it is appropriate to adhere to [the VSCA’s approach in Momcilovic] until and unless the High Court determines that it is incorrect’

3:3 splitAt [140]: French, Crennan and Kiefel held s7(2) not to inform s32At [141]: Bell, Gummow and Hayne held s7(2) does inform s32At [141]: But Heydon J held s32 to be invalid, and does not count

Nigro & Ors v Secretary, Department of Justice

[2013] VSCA 213

Redlich, Osborn,Priest JJA

Redlich, Osborn and Priest JJA (Joint/Unanimous) At [88]: ‘Slaveski and Operation Smile have left open the question whether this Court should follow its own decision in Momcilovic… it is unnecessary to resolve this uncertainty.’

3:4 split At [87]: Cited and approved the breakdown of judgments given in Slaveski28

Momcilovic Arguments Against Section 7 and 32

• 1A: Reference to legislative ‘purpose’ makes s 32(1) co-extensive with ordinary norms of statutory interpretation (cf forced rights-based interpretation)

• 2A: Intermingling rights-sensitive interpretation under s 32(1) with rights-limiting under s 7 risks diluting full scope of guaranteed rights

• 3A: Intermingling of rights-sensitive and rights-limiting imperatives not automatic across jurisdictions

• 4B: Combining the two provisions risks differing statutory interpretation results by courts, public bodies, and others with Charter responsibilities

29

Contingent Responses on Section 7 and 32

• 1B: What if (a) ordinary statutory interpretation norms and/or (b) the principle of legality do/can embrace proportionality?

• 2B: Capacity to distinguish between different rights-based functionalities at different stages of reasoning

• 3B: Still a case-by-case assessment and intermingling not automatically precluded either

• 4B: Synchronisation and guidance on intermingling from courts to others (eg rights-compatibility extrinsic material informing judicial interpretation of laws under legislative interpretation rules)

30

Framework for Two-Way Interaction between Victorian Charter and

Comparative Proportionality Discourse

31

Comparative Framework Possible?

• German and EU uses of proportionality, especially ECHR-infusion of UK human rights law

• HCA’s constitutional references to proportionality (eg Justice Kiefel on proportionality ‘sub-principles’ of ‘suitability’, ‘necessity’, and ‘proportionality in the strict sense’, in Rowe v Electoral Commissioner)

• South African, Victorian, and ACT rights-limiting provisions• Canadian rights-limiting provisions• Landmark De Freitas (UK) and Oakes (Can) tests• Subsequent Bank Mellat (UK) reformulation• Hansen (NZ) tests• VCA and HCA pre-Momcilovic, Momcilovic, and post-

Momcilovic cases

32

Comparative Proportionality Framework – 5 Elements

• #1 A standpoint from which to examine what is unique, common, and distinctive about the Vic Charter, as one model amongst others in comparative proportionality jurisprudence

• #2 Located within the taxonomy of proportionality across jurisdictions• #3 Accommodates spectrum of exclusion-resistance-customisation-

convergence-divergence-uniqueness within the landscape of comparative proportionality jurisprudence

• #4 A baseline for analysing and using:– An order of questions– A correlative set of thematically labelled standards

• #5 Victorian-focused position on the proportionality landscape, but reflexive in nature and outlook:– From the outside in (ie comparative proportionality jurisprudence’s

relevance for the Vic Charter’s work)– From the inside out (ie what the Vic Charter’s work contributes to

comparative proportionality jurisprudence)

33

Conceptual Framework I

Step-by-Step Focus of Enquiry• Q1: Is this particular institution

the right one to make relevant decisions about the lawfulness of governmental interference with human rights, and for what purpose(s)?

• Q2:Has the particular limit upon a particular human right been done validly under the law?

• Q3: Is the particular limit upon a particular human right of a kind that is justified according to democratic and other public values?

Correlative Framing Standard(s)

• S1: ‘(Institutional) Propriety’ (aka ‘legitimacy’, ‘appropriateness’ etc)

• S2: ‘Legality’

• S3: ‘Justification’

34

Conceptual Framework II

Step-by-Step Focus of Enquiry• Q4: Is the objective sufficiently

important to justify limiting the rights(s)?

• Q5: Is the rights-limiting measure rationally connected to the objective?

• Q6: Is there a less rights-disruptive means available without compromising the desired objective?

• Q7: Is the rights-limiting impact excessive, on an overall cost-benefit assessment of the rights-impact, measure-benefits, and objective-needs?

Correlative Elemental Standard(s)

• S4: ‘Significance’

• S5: ‘Rationality’

• S6: ‘Necessity’

• S7: ‘Excessiveness’

35

Conceptual Framework III

Step-by-Step Focus of Enquiry• Q8: What are the appropriate

measures for making the various ends-means, cost-benefit, and other proportionality-related judgments involved?

• Q9: What leeway (if any) should one institutional arm of government afford another’s rights-limiting decision?

• Q10: Who bears the onus and by what means of demonstrating a justified rights-limitation, and for what purpose (eg political rights-compatibility assessments v. judicial statutory interpretation)?

Correlative Quality-Control Standard(s)

• S8: ‘Measurement’

• S9: ‘Deference’ (aka ‘levels of scrutiny’, ‘weight and latitude’, ‘margin of appreciation’ etc)

• S10: ‘Proof’

36

Proof – VCA in Momcilovic• ‘There may be circumstances where the

justification for interfering with a human right – and for doing so by the particular means chosen – is self-evident, but they are likely to be exceptional. The government party seeking to make good a justification case under s 7(2) will ordinarily be expected to demonstrate, by evidence, how the public interest is served by the rights-infringing provision. The nature and extent of the infringement of rights sought to be justified will usually determine how much evidence needs to be led, and of what kind(s).’

37

Comparative/Concentric Systemic Governance

• 21st century conditions of deliberative, participatory, and monitory democracy:– Institutional rights-protection v majoritarian rule– ‘Culture of justification’ v ‘culture of authority’– Implications for place and degree of institutional deference

• Two-way interaction between Victorian Charter and comparative proportionality jurisprudence

• Victorian systemic politico-legal implications (and reform needs) if different institutions are differently engaged in rights-limiting decisions, rights-sensitive interpretation, and rights-compatible assessments:– Politicians introducing and voting on Bills– Parliamentary scrutiny committees– Courts interpreting laws, making declarations, and using extrinsic material– ‘public authorities’ and policy-makers conforming to the Vic Charter– People knowing their human rights under Victorian law

38