Chapter-5
The Doctrine of Severance
Part-3
In the Industrial Relations Act Case[91][1], this Court summarised the principles applicable in determining whether to sever the partially invalid provisions of an enactment from the rest of the enactment. In a joint judgment, the Court said:
"Section 15A of the Interpretation Act [1901 (Cth), relevantly similar to the Queensland provision] may fall for application in two distinct situations. It may fall for application inrelation to 'particular clauses, provisos and qualifications, separately expressed, which are beyond legislative power'. It may also fall for application in relation to general words or expressions. It is well settled that s 15A cannot be applied to effect a partial validation of a provision which extends beyond power unless 'the operation of the remaining parts of the law remains unchanged'.Nor can it be applied to a law expressed in general terms if it appears that 'the law was intended to operate fully and completely according to its terms, or not at all'.
Where a law is expressed in general terms, it may be more difficult to determine whether Parliament intended that it should, nonetheless, have a partial operation. And there is an additional difficulty if it 'can be reduced to validity by adopting any one or more of a number of several possible limitations'. It has been said that if, in a case of that kind, 'no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid'.
The limitation by reference to which a law is to be read down may appear from the terms of the law or from its subject matter. Thus, a law which is 'clearly made with the intention of exercising the power to make laws with respect to trade and commerce' can be read down 'so as to limit its application to inter-State and foreign trade and commerce'. Similarly, where a law is intended to operate in an area where Parliament's legislative power is subject to a clear limitation, it can be read as subject to that limitation." (footnotes omitted)
Only offending portion of Statute to be declared to be of no Force
The flexibility of the language of s. 52 is not a new development in Canadian constitutional law. The courts have always struck down laws only to the extent of the inconsistency using of the doctrine of severance or "reading down". Severance is used by the courts so as to interfere with the laws adopted by the legislature as little as possible. Generally speaking, when only a part of a statute or provision violates the Constitution, it is common sense that only the offending portion should be declared to be of no force or effect, and the rest should be spared.[2]
Severance as a Technique to save the Rest of the statute
Far from being an unusual technique, severance is an ordinary and everyday part of constitutional adjudication. For instance if a single section of a statute violates the Constitution, normally that section may be severed from the rest of the statute so that the whole statute need not be struck down. To refuse to sever the offending part, and therefore declare inoperative parts of a legislative enactment which do not themselves violate the Constitution, is surely the more difficult course to justify.
‘The Examples of Overbreadth and Vagueness"[3], it is logical to expect that severance would be a more prominent technique under the Charter than it has been in division of powers cases. In division of powers cases the question of constitutional validity often turns on an overall examination of the pith and substance of the legislation rather than on an examination of the effects of particular portions of the legislation on individual rights. Where a statute violates the division of powers, it tends to do so as a whole. This is not so of violations of the Charter where the offending portion tends to be more limited’.
Where the offending portion of a statute can be defined in a limited manner it is consistent with legal principles to declare inoperative only that limited portion. In that way, as much of the legislative purpose as possible may be realized. However, there are some cases in which to sever the offending portion would actually be more intrusive to the legislative purpose than the alternate course of striking down provisions which are not themselves offensive but which are closely connected with those that are. This concern is reflected in the classic statement of the test for severance in Attorney-General for Alberta v. Attorney-General for Canada,[4] at p. 518:
‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.’
This test recognizes that the seemingly laudable purpose of retaining the parts of the legislative scheme which do not offend the Constitution rests on an assumption that the legislature would have passed the constitutionally sound part of the scheme without the unsound part. In some cases this assumption will not be a safe one. In those cases it will be necessary to go further and declare inoperative portions of the legislation which are not themselves unsound.
Therefore, the doctrine of severance requires that a court define carefully the extent of the inconsistency between the statute in question and the requirements of the Constitution, and then declare inoperative
(a) the inconsistent portion, and
(b) such part of the remainder of which it cannot be safely assumed that the legislature would have enacted it without the inconsistent portion.
[1] Industrial Relations Act Case Victoria v The Commonwealth (1996) 187 CLR 416 at 502-503 per BRENNAN CJ, TOOHEY, GAURDON, McHUGH and GUMMOW JJ
[2] Schachter [supra]
[3] in Sharpe, ed., Charter Litigation (1987) at pp. 250-52)
[4] Attorney-General for Alberta v. Attorney-General for Canada, [1947] A.C. 503, at p. 518:
No comments:
Post a Comment