Comparing Australian and UK Approaches to Interpreting Human Rights Laws | Lecture notes Human Rights

5.9 Interpretive Clauses

The Principle of Legality and Interpretive Clauses

 Statutory bills of rights commonly include provisions which require legislation

to be interpreted consistently with protected rights. Eg

 Victoria: Charter of Human Rights and Responsibilities Act 2006 (Vic) s

32(1): 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.

 WA: Human Rights Act 2016 (WA) s 25(1): Same as Vic one.

 UK: Human Rights Act 1998 (UK) c 42 s 3(1): 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.

 NZ: Bill of Rights Act 1990 (NZ) s 6: 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.

 Differences between these provisions:

o Vic/ WA Charter shows consistency with the purpose (UK and NZ

one doesn’t explicitly mention purpose – this could suggest the Vic/

WA one being a more narrow approach)

o Must be read and give effect (instead of ‘interpretation’ in Vic, NZ

refers to meaning, UK says ‘give effect’) – meaning can be different to

interpreting therefore what the jurisdictions allow the courts to do are

different.

o Or you could argue that ‘meaning’ and ‘interpreting’ is the same/

similar but just easier to use and say rather than saying ‘give effect’.

Ghaidan v Godin-Mendoza [2004] 2 AC 557

 “On the death of a protected tenant of a dwelling-house his or her surviving

spouse, if then living in the house, becomes a statutory tenant by succession.

But marriage is not essential for this purpose. A person who was living with

the original tenant 'as his or her wife or husband' is treated as the spouse of

the original tenant”: see Rent Act 1977 (UK) Schedule 1, para 2(2).

 Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 [a pre-HRA

case] decided this provision did not include persons in a same-sex

relationship.

 Issue: Could this reading of para 2 can survive the coming into force of the

Human Rights Act 1998 (UK)?

 Facts: Ghaidan, the landlord, sought to evict Mr Godin-Mendoza, after the

death of G-M’s partner, Mr Wallwyn-James, the named tenant.

 Rent Act 1977 (UK) Paragraphs 2 and 3 of Schedule 1 provide:

'2(1) The surviving spouse (if any) of the original tenant, if residing in the

dwelling-house immediately before the death of the original tenant, shall after

the death be the statutory tenant if and so long as he or she occupies the

dwelling-house as his or her residence.

(2) For the purposes of this paragraph, a person who was living with the

original tenant as his or her wife or husband shall be treated as the spouse

of the original tenant.

3(1) Where paragraph 2 above does not apply, but a person who was a

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5.9 Interpretive Clauses

The Principle of Legality and Interpretive Clauses

 Statutory bills of rights commonly include provisions which require legislation to be interpreted consistently with protected rights. Eg  Victoria: Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32(1): 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.  WA: Human Rights Act 2016 (WA) s 25(1): Same as Vic one.  UK: Human Rights Act 1998 (UK) c 42 s 3(1): 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.  NZ: Bill of Rights Act 1990 (NZ) s 6: 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.  Differences between these provisions: o Vic/ WA Charter shows consistency with the purpose (UK and NZ one doesn’t explicitly mention purpose – this could suggest the Vic/ WA one being a more narrow approach) o Must be read and give effect (instead of ‘interpretation’ in Vic, NZ refers to meaning , UK says ‘give effect’ ) – meaning can be different to interpreting therefore what the jurisdictions allow the courts to do are different. o Or you could argue that ‘meaning’ and ‘interpreting’ is the same/ similar but just easier to use and say rather than saying ‘give effect’.

Ghaidan v Godin-Mendoza [2004] 2 AC 557

 “On the death of a protected tenant of a dwelling-house his or her surviving spouse, if then living in the house, becomes a statutory tenant by succession. But marriage is not essential for this purpose. A person who was living with the original tenant 'as his or her wife or husband' is treated as the spouse of the original tenant”: see Rent Act 1977 ( UK) Schedule 1, para 2(2).  Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27 [a pre-HRA case] decided this provision did not include persons in a same-sex relationship.  Issue: Could this reading of para 2 can survive the coming into force of the Human Rights Act 1998 (UK)?  Facts: Ghaidan, the landlord, sought to evict Mr Godin-Mendoza, after the death of G-M’s partner, Mr Wallwyn-James, the named tenant.  Rent Act 1977 (UK) Paragraphs 2 and 3 of Schedule 1 provide: '2(1) The surviving spouse (if any) of the original tenant, if residing in the dwelling-house immediately before the death of the original tenant, shall after the death be the statutory tenant if and so long as he or she occupies the dwelling-house as his or her residence. (2) For the purposes of this paragraph, a person who was living with the original tenant as his or her wife or husband shall be treated as the spouse of the original tenant. 3(1) Where paragraph 2 above does not apply, but a person who was a

Momcilovic v The Queen (2011) 245 CLR 1

 What does s 32 ask courts to do?  Does s 32 (perhaps in combination with s 7(2) ) just ask courts to apply the CL Principle of Legality to the rights protected by the Charter? (Where ambiguity in the provisions is essential to apply the Principle of Legality)  Or does s 32 require courts to go beyond the Principle of Legality and adopt a rights-consistent interpretation of legislation even where there is little or no ambiguity in the meaning of the impugned provisions? (I.e. should Australia follow the UK’s interpretation in Ghaidan , and use s 32 to remedy breaches of rights ?) French CJ  NB Australia’s different constitutional setting from the UK  There’s nothing in the language of s 32 that suggests courts are being asked to do something other than what they usually do in interpreting legislative provisions.  It assumes there is a choice between competing interpretations – i.e. ambiguity in meaning (before you can read in HRA)  S 32 essentially extends the principle of legality to those rights listed in the Charter. Gummow J  Reference to ‘purpose’ is no different from the approach taken in Project Blue Sky under common law to finding the ‘intention’ of the legislation Heydon J  S 32’s reference to ‘purpose’ rather than ‘meaning’ is revealing.  That, plus the explanatory material, and legislative history (derived from ACT HRA), suggest that what s 32 was intended to do was allow courts to override the ‘meaning’ of legislation to replace it with a HR compatible meaning, with the only limitation being that the new meaning couldn’t be inconsistent with Parliament’s ‘purpose’.  A Ghaidan style remedial approach was intended. This is reflected in the extraneous material  “Section 32(1) commands the courts not to apply statutory provisions but to remake them—an act of legislation”  Therefore, Heydon finds s 32(1) invalid (Breaching the Constitution Separation of Powers). Crennan and Kiefel JJ  S 32 was based on s 3(1) of the UK HRA. But differs in an important way: o The HRA requires that provisions be “read and given effect in a way which is compatible with rights”; o The Charter simply requires that legislation “must be interpreted” in a way that’s compatible with rights.  This difference in language is sufficient to show that the Ghaidan remedial approach wasn’t intended. What was intended by s 32 was the ordinary approach to “interpretation” – i.e. Principle of Legality + Text, Purpose, Context etc.

Comparing Australian and UK Approaches to Interpreting Human Rights Laws, Lecture notes of Human Rights

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Download Comparing Australian and UK Approaches to Interpreting Human Rights Laws and more Lecture notes Human Rights in PDF only on Docsity!

5.9 Interpretive Clauses

The Principle of Legality and Interpretive Clauses

Ghaidan v Godin-Mendoza [2004] 2 AC 557

Momcilovic v The Queen (2011) 245 CLR 1