Declarations of Incompatibility

1
Declarations of Incompatibility

• An overview

2
HRA ACT s 32

• Applies in Supreme Court only
• S 32 (2) If the Supreme Court is satisfied that
  the Territory law is not consistent with the
  human right, the court may declare that the law
  is not consistent with the human right.
• DoI does not affect validity, operation or
  enforcement of the law, or any rights or
  obligations
• ACT debate re constitutionality of s 32

3
Impact of a Declaration of Incompatibility

• S 32 (4) Supreme Court Registrar gives copy
  promptly to A-G
• S 33 (2) A-G presents copy to the LA within 6
  sitting days
• S 33 (3) A-G must prepare written response and
  present it to the LA no later than 6 months after
  presentation of declaration to the LA

4
Declarations UK practice

• S 4 HRA UK (tab 5)
• Envisioned by drafters as a very rare procedure
  (cf list at tab 5)
• Allows use of remedial order procedure (fast
  track legislative amendment) in s 10 HRA
• Used after R v Mental Health Review Tribunal
  2002 QB 1

5
Assessing incompatibility in the UK (1)

• 1. Principle of proportionality (from ECHR
  jurisprudence) to assess limitations of rights
  (see R v A 2002 1 AC 45 at 65)
• Cf HRA ACT s 28 Human rights may be subject
  only to reasonable limits set by Territory laws
  that can be demonstrably justified in a free and
  democratic society.

6
Assessing incompatibility in the UK (2)

• 2. Use of Extrinsic Material increased
  reference to parliamentary and ministerial
  documents to ascertain legislative intent eg
  Wilson v Sec of State for Trade and Industry
  2003 UKHL 40
• But lack of cogent justification in the course
  of parliamentary debate is not a matter which
  counts against the legislation on issues of
  proportionality.

7
Assessing incompatibility in the UK (3)

• 3. Deference to the Democratic Decision-Maker
• Eg Lord Hope in R v DPP, ex p Kebilene 2000 2
  AC 326, 380-1 there is an area of judgment
  within which the judiciary will defer, on
  democratic grounds, to the considered opinion of
  the elected body or person whose act or decision
  is said to be incompatible with the convention.

8
Relationship to s 30 interpretation

• Interpretation process comes first
• If consistent interpretation is not possible
  evaluation of effect of law in terms of hr
• HL in Wilson (para 61) 2 step process 1) compare
  effect of law with a hr
• 2) if pf violation, compare policy objective of
  law with policies behind acceptable limitations
  on rights

9
House of Lords in Wilson

• When making these two comparisons the court will
  look primarily at the legislation, but not
  exclusively so. Convention rights are concerned
  with practicalities. When identifying the
  practical effect the court may need to look
  outside the statute in order to see the complete
  picture