The New Charter

R v Momcilovic [2010] VSCA 50 certainly merits a second break from my break from blogging. The most obvious reason is that it announces the very likely (but not certain) prospect of the first ever declaration of inconsistent interpretation under Charter s. 36:

THE COURT OF APPEAL DECLARES THAT:

Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) cannot be interpreted consistently with the presumption of innocence under section 25(1) of the Charter.

This’ll be (and indeed is) an Australian first, but let’s not get too carried away. It will not be the first time an Australian law has been officially declared:

• to be incompatible  with human rights. See here.
• to be incompatible with international human rights. See here.
• to be incompatible with international human rights under a domestic law. See here.
• by a court, to be incompatible with international human rights under a domestic law. See here.
• by a court authorised to make such a declaration , to be incompatible with international human rights under a domestic law. See here.

Rather, it will be the first time that a court authorised to do so declares that an Australian law is incompatible with international human rights under a domestic non-equal-opportunity law. And, even then, such a declaration was nearly made over a decade ago (and it would have been much more consequential than this one.) Regardless, the court’s finding that DPCSA s5, Victoria’s unique and nasty ‘deemed possession’ provision, is incompatible with the right to be presumed innocent is both a statement of the bleeding obvious and a relief. Indeed, with the shameful exception of the Attorney-General, it’s also a finding that everyone agrees with, including (as it turns out) the prosecution.

But what is much more surprising is the VCA’s finding that this shame could not be interpreted away. The real importance of Momcilovic isn’t its findings about either Charter s. 25(1) or DPCSA s5, but instead its complete reworking of two of the Charter’s core provisions: Charter s. 7(2) (on reasonable limits) and Charter s. 32 (on interpretation.) Until now, the vast majority of decisions, writings and advocacy about the Charter have argued furiously that these two provisions act in combination so that  all Victorian statutory provisions are liable to be manipulated by their readers to bring them into line with a test of reasonableness founded on international standards of rationality, proportionality and liberal democratic values. In other words, it’s been claimed that, since it came into operation on 1/1/8, the Charter has injected a legally obligatory human rights culture into the entire field of Victorian regulation. Doctrinal positions (and PR blather) to this effect about the Charter’s operative provisions have been repeatedly advocated in particular by the Attorney-General’s lawyers, VEOHRC and the human rights sector, and such an operation of the Charter has also been assumed by critics of such statutes. It’s a reading of the Charter that I have repeatedly criticised in this blog.

And now, unless there’s a (successful) appeal or revisiting of the issue, this approach is dead. The new approach is set out at [35]:

(1) Section 32(1) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.

(2) Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The key rejections of the alternative approach are at [101]-[102]:

In the view we have taken, s 32(1) has the same status as (for example) s 35(a) of the Interpretation of Legislation Act 1984 (Vic). It is a statutory directive, obliging courts (and tribunals) to carry out their task of statutory interpretation in a particular way. It is part of the body of rules governing the interpretive task. Compliance with the s 32(1) obligation means exploring all ‘possible’ interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is ‘possible’ is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights.

and at [105]-[107]:

[O]ur conclusion that s 32(1) is not a ‘special’ rule of interpretation reinforces our view that justification becomes relevant only after the meaning of the challenged provision has been established… It is that the emphatic obligation which s 32(1) imposes – to interpret statutory provisions so far as possible compatibly with Charter rights – is directed at the promotion and protection of those rights as enacted in the Charter. We reject the possibility that Parliament is to be taken to have intended that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right.

In Momcilovic, Court of Appeal President (and ex leader of Liberty Victoria) Chris Maxwell, David Ashley (a commercial lawyer who recently emerged as the only Victorian judge honest enough to admit that Peter Dupas can never get a fair trial in Victoria) and (ex-academic and law reform commisioner) Marcia Neave held that not only do Charter ss. 7(2) and 32 make no dramatic changes to Victoria’s legal system, but they don’t have anything to do with eachother.  Charter s. 32, far from being an outsourcing of Parliament’s lawmaking role to anyone who reads a statute, is simply a tool for assisting those readers in understanding Parliament’s words and intent. And Charter s. 7(2), far from being a legally enforced new culture that envelops anyone who is affected by a Victorian statute, is instead just a tool for assessing (and not re-interpreting) laws by the same two bodies that are responsible for them in the first place: Parliament and the courts.

Why reject the broader conception of the Charter? Because:

It is an interpretation of the [Charter] depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognized principle…., and which, when started, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged… principle, but arrived at by the Court on the opinions of Judges as to hopes and expectations respecting vague external conditions. This method of interpretation cannot, we think, provide any secure foundation for… State action, and must inevitably lead—and in fact has already led—to divergencies and inconsistencies more and more pronounced as the decisions accumulate…. But we conceive that [overseas] authorities, however illustrious the tribunals may be, are not a secure basis on which to build fundamentally with respect to our own [Charter]. While in secondary and subsidiary matters they may, and sometimes do, afford considerable light and assistance, they cannot, for reasons we are about to state, be recognized as standards whereby to measure the respective rights of [Victorians] and [Victoria] under the [Charter].

No, that isn’t from Momcilovic, but a much earlier landmark case about another major statute that Australia received from overseas.

Momcilovic is the Charter’s Engineer’s case. What the Victorian Court of Appeal has held in Momcilovic is exactly what this blog has being saying all along: that the Charter is just a statute and, in particular, a bunch of (often) disparate provisions. Neither its pompous title, nor its illustrious forebears, nor its often opaque drafting change that. The  Charter’s meaning is not to be read subject to the murky political imperatives that led to its development, drafting and enactment. It isn’t to be read in light of the views or hopes of its founding mums and dads, no matter what they say. Its provisions don’t combine mystically to achieve greater goals. Not unless those provisions themselves say so. Courts should just read the provisions the way they read any statute: by reading the words, pondering their context and looking through the pertinent extrinsic materials.

Hopefully,the pre-Momcilovic era of the Charter, partially chronicled in all its hideous detail on this blog, will soon be as forgotten as the pre-Engineers era of the Constitution. See ya later Ghaidan, and RJE, and Kracke, and FRED. The Charter is dead. Long live the Charter (perhaps.)

So, what does this all mean for the Charter’s various stakeholders? I’ll discuss them in turn.

Warren’s Charter

No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. Privilege against self-incrimination abrogated

(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing,
might tend to incriminate the person or make the person liable to a penalty.

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in- (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty- other than- (c) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) a proceeding in respect of- (i) in the case of an answer, the falsity of the answer; or (ii) in the case of the production of a document, the falsity of any statement contained in the document.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights:

New Year’s Eve resolutions

And now it’s time for a Charter dodge of my own. After one year, 289 posts and 375,000 or so words, this is the end of Charterblog. The site and archive will remain, but there’ll be no more posts from me.  [EDIT: OK, I’ll write an ‘About this blog’ post at some point for folks from the future who want to dig up a time capsule from 2008.]

Why stop now?  I made the decision to stop the blog today back in around July.  Charterblog is, as readers will well know, a very intensive blog . I’ve managed it so far, but I’ve long known that it isn’t sustainable (especially for someone with two regular jobs.) My options were either to make the blog less intense or to make it finite. I didn’t hesitate in choosing the latter. Better an intense, temporary blog, than a perpetual and lame series of links,  one-liners and the odd meaningful post. A year-long blog makes aesthetic sense and matches the year-by-year nature of the Charter’s development too.

As well, 2009 is a big year for me in my academic job: three books (on criminal process, evidence, and substantive criminal law) to write or co-write, as well as a new criminal law course to develop (in the Melboune JD, ditching homicide, theft and rape completely in favour of covering the thousands of more routine offences.) Fortunately for me, all these projects have a significant human rights component, so I won’t be going cold turkey on the Charter. Finally, recently, it’s become clear that it’s probably too early for a perpetual blog charting the development of Charter jurisprudence, as the pace of that development (if, indeed, it is happening at all) is too glacial to sustain a case-by-case analysis.  The result is too many frustrated posts that begin ‘Yet again…’. If I kept this up, I might become jaded!

Thanks are due to a couple of people in particular. First, to my long-suffering partner Denise, who has put up with me hogging the MacBook, staying up late typing and, no doubt, muttering in my sleep about Charter s. 6(2)(b). She would have been well within her rights to issue all sorts of ultimatums, but she didn’t. I don’t deserve her. Second, to both my employers. Blogging carries no cred with DEST and even the folks at Melbourne Uni who defined ‘knowledge transfer’ can’t seem to get their heads around the concept. And my particular blogging style and views bring political risks, not only for SARC but (as it turns out) for Melbourne Law School too. I’m fortunate indeed that neither has raised the slightest objection. That’s quite appropriate, of course, given Charter s. 15, but it’s also courageous, especially when there’s a bully on the block. Finally, thanks to the community of readers for the comments, links, heads-ups and encouragement.

Quitting the blog feels a little like giving up a baby. I can’t recommend blogging highly enough to any academic whose field includes regular contemporary developments. A commitment to regular, public and comprehensive commentary forces an engagement with the subject-matter that exceeds any other academic endeavour, even a PhD. And the informality of blogging is a perfect antidote to the jargon and circuitous nature of formal academic discourse, not to mention the obsequiousness and pomposity of the law.  I imagine that I’ll return to blogging (or whatever its equivalent will be then) in the long-term, maybe even about the Charter (though only if the jurisprudence matures a whole lot.)

But in the short term, it’ll be very weird not posting about all the coming judgments: Bongiorno’s challenge, the FOI challenge, the taxi driver appeal, Hinch’s challenge, the mental health appeal (although the revelation that the plaintiff in that case is named Kracke posed a challenge of its own to my unfortunate tendency to pun that I could not possibly have resisted.) And whatever happenned to the ‘nameless teen’s’ child porn charge? (Seriously, could someone tell me?) There’s also the ACT’s new conduct mandate, which starts in, oh, 75 minutes or so. (I originally planned to make Charterblog subject to the ACTHRA on 1/1/9!) And, there’s the federal consultation too. Still, if a blog is finite, then it has to stop sometime and that time… is… now.

Giuseppe De Simone redux

[EDIT: Here, at last, the post VCAT suppressed, originally written over a month ago. Who knows why the suppression was ordered or lifted? The case is now available online.]

He’s baaaack! Giuseppe De Simone, readers will recall, scored a brief Charter mention on Halloween in his succesful appeal against his conviction for biting a police officer in the aftermath of a supermarket dispute involving an ice-cream he ate. But that isn’t the end of his business in Victoria’s judicial system or, for that matter, his significance for the Charter. In a recent VCAT judgment, he had another bite of the Charter cherry. Actually, it was his third. And it raises one novel issue (involving Charter s. 33, the Supreme Court referral provision) and a host of familiar ones.

The context is a building contract dispute relating to the Seachange Retirement Village at Ocean Grove  (which, for those who don’t know, is quite close to Barwon Heads, which, for those who don’t know, is the real life location of Pearl Bay, which, for those who don’t know, lucky you.) The owners of the land have sued the builders for non-performance (after the Charter s. 49(2) cut-off date, it seems) and the builders have counterclaimed for misleading conduct. In the thick of things is De Simone, managing director of the owners. On 27th July 2006, two days after the Charter became law, he sent the builders, who said they needed evidence of financing for insurance purposes, a letter on an accountant’s letterhead that appeared to confirm financing. Alas, it seems, it didn’t, but was instead a letter about a subsidiary money matter. This led to De Simone being personally joined in the action. The recent VCAT case was De Simone’s attempt to stay that part of the action.

But, before we get there, there’s an earlier Charter angle. The original VCAT officer appointed to the case early last year was Senior Member Roger Young. Young fairly quickly started to have problems with De Simone, who, it turns out, ‘has studied law but has not been a legal practitioner’. The worst sort! De Simone represented himself (for the most part) in the various directions and interlocutory hearings that arose last year and he and Young obviously didn’t get along, with Young often shutting down De Simone’s contributions (and pointedly suggesting he get a lawyer) and De Simone making applications for Young to step down due to apprehended bias (one of which was prompted by the ‘lawyer’ suggestion, which Young conceded was a lame joke.) In the end, it seems, Young just started to lose it, stopping De Simone from making relevant submissions, criticising De Simone for skipping a meeting that Young had excused him from and, most damningly, saying things like: ‘Gee whiz, I’m getting sick of you!’ (Surely likely to be the last non-ironic use of the term ‘gee whiz’ ever.) So, in the middle of this year, in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, VCAT’s (then) acting President Ian Ross exercised his powers to take over the case, citing apprehended bias, De Simone’s fair hearing right and Charter s. 24. The latter was a classic passing mention, with all the lameness and fuzziness that follows from it. Fortunately, Ross’s latest Charter judgment on the case is more substantial.

De Simone’s case for having the civil claim against him stayed arises because the builders not only sued in VCAT but also referred De Simone’s alleged financing letter shenanigans to the Geelong police. De Simone has not yet been charged (either at the time of his application, in July, or the time of the ruling, in late November), but it was accepted by all parties in the hearing that the probability of  a charge of obtaining financial advantage by deception was ‘high’, although the time-line is not known. De Simone’s application therefore raised the same issue as Trevor Flugge‘s (successful) stay application: whether the civil proceedings should be stayed to avoid prejudicing the defence of the future criminal proceedings and, in particular, whether the unpopular 1982 judgment of McMahon v Gould, which generally favoured the rights of civil litigants, should be applied. However, whereas Flugge’s action faced some significant barriers to raising the Charter (due to the federal context and the  Charter’s lack of direct application to common law rules), De Simone’s action lacks those barriers: VCAT’s jurisdiction is both Victorian and statutory.

The initial (and most novel) issue in Seachange Mangement Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629 is whether the questions pose by De Simone’s Charter challenge should be resolved by VCAT or by the Supreme Court. De Simone requested the later. Here’s the relevant Charter provision:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not- (a) make a determination to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

This provision is the result of a recommendation by the Consultation Committee. (Interestingly, and pertinently, the Committee’s draft also required a referral to the Court of Appeal instead of the Supreme Court if the referral was from a VCAT President or Vice-President, but that equitable treatment of VCAT and the Supreme Court was excised by the meddlers. )  The Committee explained that sometimes lower courts ‘need guidance on an interpretative question’ and that the Committee ‘sees value’ in having the Supreme Court decide them (following notice to the A-G and VEORHC.) So, it’s another plank in the Committee’s ‘don’t let lesser lawyers or officers stuff up our precious Charter; that’s a job for the Attorney-General and the Supreme Court’ philosophy. However, unlike the risible Charter s. 35, this provision is ameliorated by the sensible constraints of requiring both a party request and a determination by the first instance officer, before the higher authorities stick their collective nose in.

God knows why De Simone made his application (relating to both the application of Charter s. 24 directly to VCAT and its application to the procedural provisions in the VCAT Act), though you’d have to wonder whether he just wanted to delay the civil claim against him under Charter. s33(2)(a), which would probably be as good as getting a stay. But the interesting question is when and on what basis such an application should be granted under Charter. s. 33(1)(b). Neither the Consultation Committee’s report nor the EM given even the slightest hint of when a question ‘is appropriate for determination by the Supreme Court’ [sic – or the Court of Appeal.] Here’s Ross’s take:

I am not persuaded that it is appropriate to refer either of these questions to the Supreme Court pursuant to s 38(1) [sic]. The issues raised by the questions were fully ventilated in the proceedings as was the application of the relevant principles to the facts of this matter. In my view the most expeditious course is to determine the application. Any party aggrieved by the decision may exercise their appeal rights and the issues sought to be determined by the referral application may be determined in that context.

Well, I’m not persuaded by this. Surely, the major issue under Charter s. 33(1(b) is whether or not the question is important enough to require authoritative determination, both for the benefit of the immediate matter and for other similar proceedings. The application of McMahon v Gould in VCAT matters would seem to fit the bill, especially given the enormous criticism of that case, including recently in the Supreme Court. The major counter-factor would be the impact of Charter s. 33(2)(a) on the proceeding itself. Perhaps that’d be a weighty factor, but Ross doesn’t discuss whether or not the builders or owners would be prejudiced by delaying the counter-claim against De Simone (who, it must be remembered, was a late joinder to the original dispute between the two companies.) Of course, there’s a certain sense in Ross’s notion that the matter could be dealt with by the Supreme Court on appeal (and that there’s no reason why Ross can’t resolve the matter himself), but that sense seems to be at odds with the whole (elitist) point of Charter s. 33.

Personally, if the parties are willing – or if one party is keen and the other isn’t prejudiced overly –  it strikes me as a good thing to fast-track major issues to the Supreme Court and Court of Appeal, at least while so many crucial things about the Charter remain unresolved. For instance, what really is the point of Bell J’s current lengthy hearings about mental health, FOI and the definition of public authority, when those matters are all so contentious that they will inevitably have to be sorted out by the Court of Appeal (and perhaps the High Court)? If the parties are fine with doing things the slow way, then I have no objection. But otherwise? The quicker these major questions about how the Charter works are authoratitively resolved, the better, surely?

Anyhow, for better or for worse, Ross proceeded to resolve the matter himself. The good news is that he (and, it seems, the lawyers, and maybe even De Simone) were well versed in Charter Operative Provisions 101:

The Charter may impact on VCAT’s work in three ways:

• if VCAT is a ‘public authority’ s 38(1) provides that it would be unlawful for it to act incompatibly with human rights (subject to the exceptions in ss 338(2) and (4));
  
• all statutory provisions must be interpreted in a way that is compatible with human rights (s 32(1)); and
  
• the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter (s 6(2)(b)).

Oh, thank you Ian Ross! You can read! I’m not being facetious. You are streets ahead of most of your supposed betters on the Supreme Court: the Bongiornos, the Lasries, the Hollingworths, etc. You’ve even noticed the exceptions to the conduct mandate, including the most important one. Praise be. After nearly a year of blogging this stuff, I’m genuinely impressed. Which is actually tragic. Alas – readers of the blog know what’s coming! – Ross’s approach to the subtleties of the Charter didn’t quite match his precise grasp of the basics.

Wrapping up 2008

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out; [RE-EDIT: no seven!]] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second- [RE-EDIT: fourth!]] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn’t inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here’s a short take on a new 2008 case that has appeared on Austlii: [RE-EDIT: Actually, there are three newcomers now.]]

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case.

The government’s Charter dodge

When I sat in on the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, one point had me quite confused:

What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

Victoria’s SSOMA, in this way, as in so many others, just like New Zealand’s scheme, has two sections specifying the consequences of an extended supervision order. Section 15 sets out some mandatory conditions that apply to all ESOs, ranging from the silly – not committing an offence – to the mundane – reporting a change of name or employment – and the intrusive – not moving address or leaving Victoria without prior permission. But it also includes these three conditions:

(g) obey all lawful instructions and directions of the Secretary given under section 16(1);

(h) obey all lawful instructions and directions of the Adult Parole Board given under section 16(2).

Section 16 provides that these two entities can give any instruction or direction considered ‘necessary’, respectively, to administer and ‘to achieve the purposes of the conditions’ of the ESO. The remainder of the section then sets out examples of what the Parole Board can do, including imposing curfews, banning the subject from particular job,  activities or people, requiring attendance at treatment programmes and the wearing of electronic bracelets, and, most dramatically, telling the offender where he may ‘reside’ (which, the SSOMA now explicitly states, may include the grounds of a prison.) 

In his judgment, Nettle solved the mystery of why Tate nevertheless only addressed the compatibility of s15 with the Charter (notably freedom of movement) and not the far more dramatic provisions of s16:

Counsel for the respondent and counsel for the Attorney submitted that, although it is open to the Secretary or Parole Board to impose onerous restrictions on an offender under ss 15 and 16, when it comes to the interpretation of s 11 the court should presume that the Secretary and Parole Board will act lawfully, and so in accordance with the Charter; and, therefore, that such orders and directions as the Secretary or Parole Board might give would never go further in restricting the rights of an offender than would be demonstrably justifiable according to the criteria delineated in s 7 of the Charter.

My year of blogging the Charter has been an exercise in steadily increasing cynicism and lowering expectations. And yet, even in late December, the government’s lawyers can still manage to make my jaw drop. (And, note that, yet again, the government party to the proceeding – represented by Tate – and the Attorney-General intervening under Charter s. 34 – represented by Davidson – are marking precisely the same submissions, as always aimed at preventing the application of the Charter. What is gained by giving the Attorney a right of intervention in these cases, other than allowing the government the benefit of two voices speaking in unison at the table? )

The government’s submission is its most extreme attempt this year to mininise any possibility of the Charter ever being applied. Under the guise of a stunningly broad reading of the interpretation mandate, its effect, if a court is foolish enough to accept it, would be to prevent the Charter’s interpretation mandate and declarations power from ever being applied to a statute that gave any person or entity a discretionary power to limit someone’s rights. Needless to say, that category covers the vast majority of occasions when rights are limited in Victoria. Moreover, it would also cover a future law that, say, gave a member of the executive a discretion to torture someone, or apply the death penalty, or to force them to convert to Christianity. The terms and prupose of such a law, the government would claim – in court, in public, in a statement of compatibility – is still compatible with the Charter because its discretions will be interpreted as only permitting those actions when they are reasonable under Charter s. 7(2).

It might seem like this argument has a significant pro-human-rights element, because it carries the corollary that all discretionary power conferred by a statute is limited within the confines of Charter s. 7(2). But this apparent generosity is really a cynical move that will replace the general remedies in the Charter’s scrutiny, interpretation and declaration regimes against overly broad statutory discretions with a case-by-case remedy that is afforded by a judicial review action (or, where applicable, a Charter s. 39(1) action), which must be litigated each and every time a government body acts. As well, because the government’s approach is couched in terms of Charter s. 7(2), each instance of litigation will have to be framed in terms of a’reasonable limits’ argument about the particular act in question. As I’ve observed many times in this blog, Charter s. 7(2) assessments of particular conduct have an inherent tendency to be  self-affirming smug exercises in human rights box-ticking. The government’s argument, if accepted, would replace any chance of a human rights culture with an almost completely non-accountable process of lip service.

The Adult Parole Board’s power under the SSOMA is, of course, a case in point. Offenders subject to an ESO will typically lack the time, temperament, resources and energy to go to the Supreme Court every time a condition is added to an ESO. Moreover, the Parole Board is  itself largely impervious to legal remedies, with only a weak form of judicial review covering its most egregious overreaches. Further, it has been exempted from the conduct mandate (in the unlikely event the Charter s. 39(1) would allow any remedies to be sought against the parole board.)  And, then there’s Charter s. 7(2). Consider this argument that the government advanced to press its claim that s. 16, despite its theoretical draconian nature, is actually entirely reasonable in practice:

Reference was made to material put before the court as to the orders and directions which have been given in this case, and it was submitted that it was open to the court to take that into account as evidence of the way in which the Act operates in fact and thus as legislative facts which may assist in the interpretation of the legislation.

Nettle didn’t provide any details about this, but how could any ‘material possibly establish the reasonableness of every one of the conditions attached to every ESO? And how could the parties opposing the government in this case possibly take issue with this assessment during a three-day hearing? I have little doubt that this ‘material’ was nothing but a self-serving analysis by the parole board of how the SSOMA has been applied to keep kids safe, doubtless based on the same expert assessments that founded the original orders? (And can any claim about the Adult Parole Board’s reasonableness in keeping within its powers stand against the history of the Board acting ultra vires in requiring ESO subjects to ‘reside in the community’ at Ararat Prison?)

According to Nettle, the government’s argument that the interpretation mandate magically turns draconian statutory powers into reasonableness-compliant discretions rested on three casest. One, a Canadian decision on Quebec’s language rules, was apparently relied on to back up the government’s above argument that an Act’s reasonableness can be assessed by how it ‘operates in fact’. But the facts relied on in the Canadian case were about regulations, i.e. other laws, not decisions and, anyway, that evidence was rejected an incapable of sustaining a reasonable limits argument. Nettle implied that the government didn’t press this case much. The second case was Kay, a UK decision I’ved previously covered in this blog, where the House of Lords announced that courts adjudicating tenancy matters don’t have to assess each and every decision by a landlord for rights compatibility, but rather assume that the governing statutes will keep the landlords in line. Nettle dismissed that case as about procedure, but there’s a bigger problem with it.  As I covered previously, Kay is really an instance of the UK courts upholding the parliament’s prerogative to legislate incompatibly with decisions of the European Court on Human Rights. Indeed, as I explained, this year, the House of Lords, following another ECtHR rebuff, made an explicit finding that the UK’s interpretation mandate could not be stretched to read reasonableness limitations into a broad statutory power. Are these examples really the best the government could come up with?

Well, it turns out that the government’s third case is much more on point.  

Nettle’s Charter dodge

When I went and watched part of the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, Maxwell and Weinberg seemed set to throw the Charter at the government, while Justice Geoffrey Nettle seemed to be sitting on the sidelines and even throwing the government a bone or two. That just goes to show that my lousy predicting ability is quite robust. As previously posted, the chatty duo bizarrely didn’t apply the Charter, while Nettle, seeing more value in comity, felt that only the Charter could justify ditching Callaway’s interpretation of s11 of the SSOMA from just two years ago.

And Nettle promptly applied the Charter to do just that. This is, of course, quite exciting: perhaps only the second time the Charter has actually made a difference to the outcome of a case (albeit, on this occasion, only the difference between a majority and a unanimous new interpretation.) Some will see more excitement in Nettle’s discussion of the interpretation mandate:

I acknowledge that, if TSL, Tillman and Cornwall are regarded as having been correctly decided according to ordinary conceptions of statutory construction, it must also be accepted that Parliament’s intention at the time of enacting s 11 of the Act was that ‘likely’ need not mean more likely than not. To adopt now the construction which I prefer is to accept that the intention has changed. But that appears to be the way in which the Charter was intended to operate.

It’s great to see that he’s clearly read Charter s. 32, even giving a bit of lip service to the purposive limitation. And he’s even read some overseas cases on rights compatible interpretation. Glory be. In particular, he adopted the discussion of the UKHRA interpretation mandate by Lord Woolf in Poplar Housing:

(a) Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention).

(b) If the court has to rely on section 3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility.

(c) Section 3 does not entitle the court to legislate (its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3).

(d) The views of the parties and of the Crown as to whether a ‘constructive’ interpretation should be adopted cannot modify the task of the court (if section 3 applies the court is required to adopt the section 3 approach to interpretation)

The last of these principles is the most exciting, giving some hope that the Victorian judiciary will break free of slavishly parroting of the most intelligible of the lawyers before it. The second-last, while question-begging, is a reasonable point (and Nettle later tantalises us with an almost-endorsement of Ghaidan, not that UK-style interpretative high-jinx are needed to read ‘likely’ as ‘probable.’)

The first two points, alas, are the Charter-marginalising ‘ordinary interpretation first, Charter interpretation last’ method. Nettle says that he prefers this to Elias CJ’s dissent in Hansen due to its ‘clarity and simplicity’, not to mention its endorsement by Anthony Mason in his post-constitutional-senility life in Honkers. But: (1) The dispute in Hansen was about the interaction between the interpretation mandate and the reasonable limits provision, which is a combination peculiar to Victoria, the ACT and NZ, and doesn’t arise in the UK or HK. (2) Any chance, Nettle, of doing some freaking interpretation of the Charter, i.e. reading its words and structure, looking into its history, etc? Since when have ‘simplicity’ and ‘clarity’ been the sole test of a major structural question in a statute? Believe it or not, fundamental rights laws tend to raise some other issues too!

Still, all up, this is a rare instance this year of someone treating the Charter as something other than a bunch of soft suggestions. As Nettle says:

I consider that the interpretation of s 11 of the Act which was adopted in TSL is now inconsistent with an offender’s right to move freely within and without Victoria and the offender’s right to privacy, if not his or her right to liberty. It follows from Lord Woolf’s second direction in Poplar that the Charter cannot be ignored. Consistently with his Lordship’s third direction, however, I consider that to construe ‘likely’ in s 11 as meaning ‘at least more likely than not’ is within the permissible ambit of interpretation, well short of the forbidden territory of legislation.

Are you listening, the rest of the Victorian judiciary? Stop ignoring it.

Alas, Nettle’s relatively solid command of the operative provisions was not matched by his analysis of the rights provisions and the central notion of compatibility. His central reasoning appears in this dross:

Evidently, the purpose of s 11 of the Act is to guard against the dire consequences of the commission of a relevant offence. In some circumstances, that might justify significant encroachments on an individuals rights of freedom of movement and privacy and even liberty. But if ‘likely’ in s 11 of the Act is construed as including a less than even chance, it is capable of rendering the requirement for satisfaction to a high degree of probability illusory. For example, one might, well be satisfied to a high degree of probability (say, 80 per cent) that there is a 45 per cent chance of the commission of a relevant offence, and yet, according to the laws of probability, the risk of the commission of the offence as so assessed would be only 36 per cent. That would mean that a relatively low risk of re-offending could provide a sufficient basis for making an order. Even giving full weight to the purpose of s 11, I cannot conceive of the potentially far reaching restrictions on rights provided for in the Act as being capable of demonstrable justification in the relevant sense unless the risk of an offender committing a relevant offence is at least more than even.

Frankly, I just cannot believe that this is all he could come up with after three days of hearing.

The weakness of Nettle’s reasoning is evident in the very numbers he comes up with.

A very Charter Christmas

It must be the silly season, because why else would The Age cover the Charter?:

STUDENT squatters will try to use Victoria’s charter of human rights to stop their eviction from Melbourne University-owned buildings. The students — who have been occupying the Faraday Street terrace houses in Carlton for the past four months — were summonsed to appear in the Victorian Supreme Court yesterday for an eviction hearing. The Student Housing Action Collective want to use the terraces to create a student housing co-operative, but the university wants to develop it into off-campus student space.

Teishan Ahearne, from the collective, accused the university of using the Christmas break to move against the squatters. “The university is playing Mr Scrooge, attempting to evict homeless students on the eve of Christmas. Their actions are utterly unjust and sneaky,” she said. Yesterday the court heard that the university had begun the proceedings to comply with a building notice issued by the City of Melbourne. That notice said the buildings had to be vacated by January 7.

But Chris Povey, for the students, said his clients would seek to invoke Victoria’s charter of human rights to prevent the university from moving them on. He told the court that should the students be evicted many of them faced homelessness. Justice Cavanough agreed to adjourn the hearing to January 5, but ordered any applications under the human rights charter had to be filed with the court by December 30.

So, the students can spend Christmas in their terrace houses, but, thanks to nasty Charter s. 33 and Practice Note No. 3, they’ll have to spend their holidays swatting up on the Charter.

Alas, as I’ve discussed several times on this blog, the intersection of tenancy law and human rights law is a perfect storm of the Charter’s curmudgeonly operative provisions:

• First, the students need to find a right that has been breached. In conrtast to some of the more heartrending (or maddening) human rights tenancy cases of yore, this one doesn’t seem to involve any families or kids, so Charter s. 17 won’t help. Nor are there discrimination issues. So, everything will have to rest on the narrow shoulders of Charter s. 13(a)’s right against arbitrary interferences in the ‘home’.

• Second, there’s the problem that the Residential Tenancies Act‘s statutory language isn’t exactly amenable to re-interpretation to prevent ‘eviction into homelessness’. And there’s also the problem that any such friendly interpretation will be contrary to the rather unfriendly purposes of statutory tenancy law (and, if Hansen rules, may go further than the reasonable limits jurisprudence allows.) (I’ll take the students’ word that they have nowhere to go, though it does remind me of some former friends from my uni days who stole from the Salvo’s. ‘Who’s poorer than us?’, they asked. Fortunately, they both have jobs in top overseas unis now. Maybe that theft let them crawl out of the poverty spiral.)

• Third, there’s the conduct mandate route. But: (a) is the Uni a public authority?; (b) is eviction incompatible with the Charter right against arbitrary interference in the home?; (c) does the RTA provide the uni with Charter s. 38(2) cover? (d) is relief against eviction one of the non-Charter remedies that can squeeze through the thicket of Charter s. 39?

Bah humbug!. But at least the students may emerge (from their studies and their terrace houses) with some very handy expertise on the limits to Victoria’s Charter….

(Charterblog will, unsurprisingly, go quiet for a couple of days. Alas, there’ll be some more surprising quiet not too long after that. See the flurry of posts around New Years’ Eve….)

Maxwell & Weinberg’s Charter dodge

It’ll take me three posts (I think) to cover the fizzer that was R J E v Secretary to the Department of Justice [2008] VSCA 265. This post is concerned with the majority’s decision not to ‘apply’ the Charter when ruling on the meaning of this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005 (SSOMA):

11(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

All three judges on the Court of Appeal overturned a previous decision from 2006 that held that likely didn’t mean ‘more probable than not’, instead holding that that’s exactly what it meant.

But Court of Appeal President Chris Maxwell and carpetbagger Mark Weinberg made those findings without reference to the Charter’s interpretation mandate:

As we have said, our conclusion about the meaning of the word ‘likely’ in s 11(1) is arrived at by the application of ordinary principles of statutory interpretation, in particular the common law rule favouring that interpretation which least encroaches on individual freedom. That choice of meanings having been resolved, the interpretive task does not attract the operation of s 32(1) of the Charter, which provides:

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.

In view of that conclusion, there is no occasion to consider further the question – debated at some length on the appeal – of the correct methodology to be applied where s 32(1) is applicable. While that is undoubtedly a question of real significance following the advent of the Charter, it is not appropriate that we decide that question when it is unnecessary to do so. The correct result is more likely to be arrived at in a case where the choice to be made is of practical consequence, that is, where the court is able to assess the different results which might be produced by the competing approaches.

This is a dodge and a highly controversial one on a number of levels.

First, the proposition that it’s better to hold off choosing between competing methodologies until they make a practical difference is debatable. Antipathy to this sort of thing is common amongst anti-‘activist’ judges (e.g. Dyson Heydon’s love letter to John Howard before his appointment to the High Court, not that he kept his word.) But this practice has previously been known by the friendlier term ‘obiter dicta’ and is part of a venerable tradition of legal development by the courts, on the basis that it is often worth getting the principles right before practical differences start to emerge, rather than long after. The mess that is Charter jurisprudence to date is testament for the benefits of a little ‘early’ guidance from above. Moreover, the claim that it’s better to make the decision in a case ‘where the court is able to assess the different results’ is itself a controversial one, suggesting that choices of methodology are inevitably ‘result-driven’. The alternative view is that such ‘hard cases make bad law’. Anyway, if Maxwell and Weinberg really believed in Heydon’s claptrap, then they wouldn’t have resolved a new meaning for ‘likely’ at all, as, according to them, RJE’s order was bad on any test. 

Second, despite their claim not to be choosing between the ‘competing approaches’, Maxwell & Weinberg’s judgment actually made a choice on one issue: their reasoning in this case clearly draws a distinction between ‘ordinary’ statutory interpretation and Charter statutory interpretation, with the latter playing a fall-back role, apparently only applying if there is a further ‘choice of meanings’ available. There’s four problems with that. One is whether or not this two-step approach is consistent with Parliament’s intention in creating a human rights culture, where (presumably) those rights are front-and-centre of the law-making involved in interpretation. Another is that their choice takes at least a step towards resolving the controversial Hansen debate (that the court claimed it wasn’t resolving), as the majority Hansen view depends on drawing a distinction between ordinary and Charter principles of interpretation.   A third  is that it’s not clear that the ‘choice of meanings’ has been fully explored (as the Briginshaw principle certainly contemplates a beefed-up ‘balance of probabilities’ standard when big issues are at stake.) And a fourth is that the judges completely failed to consider the (admittedly controversial) possibility that the Charter might require a lower threshold than ‘more likely than not’,  because of the competing rights of potential victims of child sexual offenders. (More on that in another post.) 

Third, there’s the (sole) issue that divided the Court: whether it’s proper for Victoria to differ from an authoritative ruling of the NSW Court of Appeal on an identical statutory formulation in a similar (but not identical) scheme, simply because it thinks that view is wrong.

The Charter vs One-Man Conspiracies

One of the flurry of Charter passing mentions this week is R v Dickson [2008] VSCA 271, an appeal by a former AFP officer who was convicted of posing as a customs officer to facilitate the theft of some counterfeit cigarettes being held in a Port Melbourne warehouse. He was convicted of conspiring with three other people: Holmes (then a Victoria Police officer), Purdy (an associate of Holmes’s) and Wang (the fence, turned Crown witness.) But there were problems with each of these alleged co-conspirators. At Dickson’s first trial (which was joint with Holmes and Purdy), the trial judge directed an acquittal of the latter two. Because the jury had to be discharged, Dickson was tried again on his own, and it was only then that the prosecution joined Wang as a co-conspirator (arguing that, given his guilty plea, including his role in the original joint trial would have been too confusing for the jury.

The theft occurred in January 2004 and Dickson’s first trial ended in mid-2006. However, it was not until late 2007 that the new presentment against Dickson was filed. Moreover, the prosecution stuffed that one up and they had to have another go in early 2008. These events later events all happened after the Charter s. 49(2) cut-off date of 1/1/7 (and the final presentment occurred after the Charter s. 49(3) cut-off date of 1/1/8.) The convicted Dickson appealed on numerous grounds, including complaints against the presentment and the conduct of the trial, as well as an (apparently vague) complaint that ‘he did not receive a fair trial within the meaning of’ the Charter. The Court of Appeal refused leave and had this to say about the Charter ground:

Counsel for the Crown did not dispute that the filing of the ‘new’ presentment amounted to ‘the commencement of proceedings’ within the meaning of the Charter of Human Rights and Responsibilities Act 2006, and, against that background, the contention was advanced on behalf of the applicant that there has been a breach of s 25(2)(c) of the Charter and a failure to ensure that the applicant was ‘tried without unreasonable delay’. Therefore it was said, the verdict should not be permitted to stand.

Just pausing there, a couple of things to note. First, the Crown here seems to be conceding and the Court seems to be accepting, in what appears to be a first, that King J’s view on the meaning of ‘commenced’ in Charter s. 49(2) as meaning the laying of charges isn’t the end of the story. As I’ve speculated previously, if the charges are changed down the track, then arguably the proceedings re-commence, potentially bringing old criminal proceedings into the purview of the Charter. Certainly, the application of the Charter in this case would otherwise make no sense, as Dickson was originally charged (and, indeed, tried) well before 1/1/7. Second, Dickson’s ‘fair hearing’ complaint seems to have morphed into an ‘unreasonable delay’ complaint, which is a much narrower argument and was dispatched as follows by Vincent, Weinberg and Robson:

There is no need to expand upon the relationship between the rights accorded under the Charter and the principles which this Court must apply in performing its role under s 568 of the Crimes Act in addressing an application for leave to appeal against conviction. The present matter involved a number of alleged offenders and hearings and, having regard to the reasonable expectations that could be placed upon our criminal justice system, could not be assessed as inordinately protracted or resulting in the unreasonable or unjustified delay of the hearing at which the applicant was convicted. Addressed by reference to the function of this Court under s 568, there is certainly nothing that could give rise to any reasonable concern that the lapse of time between the occurrence of the events in question and the time at which it was conducted or by reason of some form of forensic disadvantage that the applicant may have suffered. Indeed none was ever suggested by his counsel.

And there’s two more things to say about this. First, it’s far from clear that there’s ‘no need to expand upon the relationship between’ the Charter and Victoria’s statutory appeal provision:

568(1) The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal

To the contrary, the Charter’s interpretation mandate may have changed the meaning of that provision (and terms like ‘miscarriage of justice’) and, as well, the Charter’s conduct mandate may have changed what trial and pre-trial events amounted to a ‘wrong decision on any question of law’.

Second, in particular, the Court of Appeal’s assessment focuses only on the ‘reasonable expectations of the criminal justice system’ and the risk of ‘forensic disadvantage’. But that arguably gives short shrift the ‘minimum guarantee’ offered by Charter s. 25(2)(c), which may well cover broader concerns, such as the defendant’s entitlement to a system and processes that can resolve the question of his guilt of theft in under four years, absent exceptional difficulties. In particular, the major delay in this case was the prosecution’s charging of Holmes and Purdy and what proved to be an inadequate case, thus costing Dickson his chance to have the matter resolved in 2006. Dickson’s reasonable expectations and whether or not he suffered a forensic disadvantage are arguably beside the point, as the Charter may have changed the ‘function of this Court under s. 568’ beyond the confines of traditional appellate law.

Anyway, I’m a bit surprised that Dickson’s ‘fair hearing’ complaint ended up shrinking to a ‘reasonable delay’ complaint, as his other appeal grounds raised quite different human rights concerns.

The Charter vs VGSO

Well, the year hasn’t ended with a bang, but there’ve been heaps of Charter whimpers, even one in the High Court. But, before I get to all of those, there’s also been some negative press about the Victorian Government Solicitor’s Office, which raises (in my mind at least) some interesting Charter issues.

One story involves an intra-University dispute:

Last week, government solicitor John Cain jnr sent a letter to James Doughney, a member of the university’s governing council, demanding he publicly apologise for “false and defamatory allegations” in an attack on a plan by university leadersto cut jobs. The letter says the university’s chancellor, Supreme Court judge Frank Vincent, and vice-chancellor Elizabeth Harman, reserve their rights to take legal action if Dr Doughney does not withdraw and apologise for his comments.

In October, The Age revealed Dr Doughney had sent a six-page letter to state and federal MPs accusing Professor Harman of using a “pea-and-thimble trick” to create a cash crisis to justify slashing 270 jobs. With Victoria University and the tertiary union in an industrial dispute, Mr McGowan said the defamation threat was an attempt to intimidate Dr Doughney in his role as state president of the union. Dr Doughney, an economist and elected staff representative on the university council, has said it was extraordinary for the chancellor to use a government solicitor in a bid to “gag” an academic.

As they say, disputes within Universities are so bitter precisely because so little is at stake. This story really only got attention because it involves some non-University players: a sitting judge and the head of the VGSO. The NTEU thought that the government should butt out, but the Attorney-General snapped back that Victoria Uni is the government:

Mr Hulls’ spokeswoman, Meaghan Shaw, said Victoria University was a statutory entity. She said the institution had been a client of the Victorian Government Solicitor’s Office for some years.

But sometimes it’s not so fun to be the government, depending on whether you fall within the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);…

So, who’s a public authority here?:

• Victoria Uni? This isn’t entirely clear. It’s definitely a ‘statutory entity’, so it’s a public authority if it ‘has functions of a public nature’. Is tertiary education a function of a public nature? I bet that question taxes University heads every day.

• Frank Vincent? (whose free speech credentials shone through in the Underbelly judgment.) This is clearer, but there’re two murky catches. He’s definitely a ‘public authority’, because he’s a ‘public official‘ under the Public Administration Act 2004, which includes judges, magistrates and the like. (He’s probably also a holder of a statutory office too, through his Chancellorship.) But one question is whether he’s a ‘court’ (or is that strictly his day job?) and then whether his Chancellorship is a non-administrative function under the dreaded Charter s. 4(1)(j). The other is whether his little letter to Dr Doughney, threatening a private law action, is an ‘act of a private nature’? So very murky. 

• VGSO? This is the clearest. I can’t be bothered tracking down what VGSO is, exactly, but it’s almost certainly a public entity and, hence, a public official, and hence a public authority (gawd.) (If not, then things depend on the status of VU, as VGSO in this case is acting on behalf of them, right?) 

Anyway, the NTEU and Dr Doughney will be thrilled to know that that means that there’s no way that VGSO would do anything that was incompatible with human rights, including Dougney’s freedom of expression:

…[F]ormer Melbourne University vice-chancellor David Pennington said it was “silly” and “nonsense” for Dr Doughney to suggest the conflict was about academic freedom of speech. “It is not an issue of academic study and expertise, he told The Age. Professor Pennington said Dr Doughney was in a conflicted position in his roles as the elected academic representative on the university’s governing council and his position as the union’s state president. “This is a matter of political and industrial positioning.” Dr Doughney had the right to participate in the decision-making process of the university’s council, Professor Pennington said, but his primary responsibility was to the “institution and the corporation”.

Well, that’s a relief. But Doughney shouldn’t have worried anyway. Victoria’s top lawyer, Pamela Tate, is a member of the Australian Academy of Law and (until two months back) was on the advisory committee to Melbourne Law School’s Centre for Comparative Constitutional Studies. No way would she have a bar of any infringements on academic freedom.

The other story is the long-running saga of Mark Morgan, the Castlemaine solicitor whose miseries started after he won a heady victory for the victims of some dodgy police conduct. The police, mostly still on the job, were too poor to pay, but Morgan initially got an order for Victoria to pick up the tab. Alas, that victory triggered demands from Morgan’s ‘no win no fee’ barristers that they get paid, which wasn’t looking like it’d happen anytime soon because Victoria was appealing. The barristers convinced Morgan, who was no longer acting in the case, that he should promise the court that he’d repay the fees to Victoria in the event that it won its appeal. Of course, Victoria did and Morgan is up for a lot of money, as neither the police officers (ever) nor  the barristers (initially) paid up. According to the Court of Appeal, the VGSO officer in charge named Hugh McArdle got pissed off at Morgan (in part because he mistakenly thought a failed contempt action by the barristers had Morgan’s backing) and threw the legal book at him, demanding payment despite further High Court proceedings and the absence of any time-condition on Morgan’s undertaking, and threatening and eventually bringing contempt actions.

Alas, McArdle’s contempt action was a bridge too far. This wasn’t clear at first, because County Court judge Pamela Jenkins found Morgan guilty and made nasty sentencing remarks that caused Morgan a world of trouble with the profession (which, of course, made it even more difficult for him to meet his debt to Victoria.) But, yesterday, in Morgan v State of Victoria [2008] VSCA 267, three appeal judges found that the contempt action was untenable in multiple ways, mostly connected to the failure of either the undertaking or later orders that replaced it to specify a time for Morgan to pay his debt. The Court gave Jenkins a big serve, for being overly happy to wave away service process rules,  for quoting a Bongiorno judgment out of context and for wrongly labelling Morgan’s wrongs extreme. Each of these errors probably piggybacks on errors by VGSO, which is the one who failed to comply with the rules and – just a guess, I dont know – just might have been the one who led Jenkins into error on Bongiorno’s wise words. The most newsworthy point is that the Court firmly disagreed with Jenkins sentencing remarks, instead noting that VGSO came to the party with very dirty hands:

Moreover, Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

Ooooh. See, it’s sometimes a good thing to be sued by the government!:

2. The obligation requires that the State of Victoria, its Departments and agencies:

(a) act fairly in handling claims and litigation brought by or against the State or an agency,

…

(c) avoid litigation, wherever possible,

…

(f) do not rely on technical defences unless the State’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(g) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim,…

But it’s not just the model litigant rules that VGSO is bound by.

It wasn’t tomorrow!

Why do I make predictions? Here it is:

As we have said, our conclusion about the meaning of the word ‘likely’ in s 11(1) is arrived at by the application of ordinary principles of statutory interpretation, in particular the common law rule favouring that interpretation which least encroaches on individual freedom. That choice of meanings having been resolved, the interpretive task does not attract the operation of s 32(1) of the Charter, which provides: 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.

The Charter has missed out on yet another day in the sun. They dodged it! They dodged it!!!!! We are the ACT….

Well, almost. Justice Nettle, god bless him, actually applied the Charter to reach the same conclusion that the majority reached. We have one third of an authorative judgment. Good one. Though I will presumably change my mind once I read it.

For those who care, RJE is free of his ESO, while ARM remains subject to his. However, as a bonus, ARM got a suppression order and we got a passing mention of the Charter. And Tate’s argument about the meaning of ‘likely’ was firmly trounced.

Obviously, I’ll have more to say eventually…

The right to lawn bowls

Both of VCAT’s recent EOA exemption decisions were decided on the same day and both took the same inordinate time to appear on Austlii. Fortunately, the second decision, by VCAT Vice President Marilyn Harbison, has a much better Charter analysis, indicating, if nothing else, that there’s not a lot of equal protection against discrimination going on within VCAT.

The issue again is gender discrimination, this time in the world of elite lawn bowls. The origin of the exemption application was two earlier decisions of VCAT. The first ruled that lawn bowls, unlike Aussie Rules, didn’t fall within the EOA’s built-in exemption for gender discrimination in sport:

66(1) A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

This decision split the world of Victorian Lawn Bowls between those who thought that the decision had saved lawn bowls and those who thought it had killed it. Various small flurries were decided, with VCAT ruling that the Victorian Ladies Bowling Association had to admit men as members but that it was also allowed to run a one-off women’s event to honour a famous lady bowler. But then VCAT decided to grant a wholesale exemption to re-segregate the elite lawn bowls competitions, on the ground that Victoria’s mixed events didn’t mesh well with the largely segregated national and international lawn bowls world. In Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415, the issue was whether the exemption would be granted again and, of course, Harbison decided that it would.

In contrast to McKenzie’s ruling on the same day, Harbison considered both operative provisions. Her main discussion was of Charter s. 32, which is unsurprising because she was applying a wholly statutory power:

83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…

In response to the applicants’ argument that the Charter wasn’t relevant because this section is ‘clear on its face’, Harbison ruled:

In my view that argument has no merit. In deciding this application, I must consider the Charter because s32 clearly tells me that in interpreting all statutory provisions (and I take that to mean whether they are ambiguous or clearly expressed), I must make sure that I do so in a way that is compatible with human rights. If I am wrong, and the charter only needs to be considered in the event that legislation is not clear, then it is my view that the Charter must be considered in any event because s83 is not clear. It is silent as to the circumstances in which an exemption may be made, and so I must seek the assistance of the Charter in interpreting the section.

Yes indeedy! That’s exactly right. 

Now, onto the next issue: how does the Charter assist? On this point, Harbison herself had the assistance of VEOHRC, who (as always) couldn’t afford to show up, but at least was able to send a letter:

It has been the Commission’s view that the Charter does require a modified approach. The issue as the Commission sees it, for exemption applications, is the impact of s7 of the Charter upon the scope of the discretion vested in the Tribunal under s83 of the Equal Opportunity Act, in the light of the need to revisit its interpretation in accordance with s32 of the Charter. In brief, it is the Commission’s position that s7 of the Charter now defines the parameters of s83 of the Equal Opportunity Act. It follows that the test to apply when exercising that discretion is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s7. If that analysis identifies that a proposed exemption is not a reasonable limitation on the right to equality then the Commission view is that it should not be granted.

That’s not bad either, although some might see it controversial because it clearly follows the Hansen approach, reading s83 down only to the extent demanded by Charter s. 7(2). While I’ve expressed some doubts about Hansen in some contexts, this context shows why Hansen is necessary, at least some of the time. Given that s83 basically authorises a departure from one of the Charter’s equality rights, it simply can’t be read as wholly compatible with those same rights. So, the only sensible re-interpretation that can occur is to read it as requiring no more than Charter s7(2) requires. (Query whether this reading is ‘consistent with the purpose’ of s83. But who knows what the hell its purpose is?) Harbison backed VEOHRC, but paraphrased its approach as follows:

Looked at in the light of s32 of the Charter, section 83 requires me to consider the purpose of the Equal Opportunity Act, and not make an exemption unless I am sure that the proposed exemption is justified by the purpose of the Equal Opportunity Act, and that the granting of the exemption is compatible with human rights.

That’s a bit vague (and seems to go further than Hansen would), but Harbison’s later analysis basically makes it clear that she will apply her discretion according to Charter s. 7(2). Moreover, she clearly takes the view that the Charter changes the approach to s83, at least in some cases:

This principle might, however, make a great deal of difference to the provision of an exemption where there is no obvious goal underpinning the exemption of redressing disadvantage or discrimination. It will assume particular importance in cases where the result of granting the exemption will be that the exemption will prevent a person from exercising his or her human rights without some public interest benefit from the exemption. It may, for instance, make a difference in cases such as re Boeing Australia Pty Ltd & Ors (2007) VCAT 532.

Oooh. That reads to me as if she knows full well that McKenzie completely buggered up BAE. Harbison later notes that ‘Deputy President McKenzie did not consider herself bound by the Charter in deciding BAE’. ‘[C]onsider’, hey? 

Issue #3: what rights exactly are limited by s83 in general and the proposed exemption in particular?:

Section 7 of the Charter defines what human rights are to be applied in accordance with s32. It is not open to me to make up my own definition as to what is a human right. I must decide whether one or more of the human rights which appear in s7 are engaged by the proposed grant of the exemption. The rights in the Charter which appear to me to be engaged in this analysis are the right set out in section 8(2) to enjoy human rights without discrimination and the right set out in 8 (3) to the equal protection of the law without discrimination. The word “discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in the Equal Opportunity Act 1995. Sex is one of the attributes in the Equal Opportunity Act on the basis of which discrimination is prohibited. In the context of this case, the right that I identify therefore is the right of every person to be able to play the sport of lawn bowls without being discriminated against by reason of his or her sex. This right is engaged by the proposed exemption because if I were to grant the exemption, a person of one gender would not be able to exercise his or her right to play bowls in relation to the events limited to the opposite gender for which the exemption is sought.

Snicker.

The right to co-education

The trickle of VCAT decisions into Austlii has brought two new Charter decisions, both on the recurrent issue of exemptions to the Equal Opportunity Act. One received some press a few weeks back, with news that the Preshil, the Margaret Lyttle Memorial School, a private school in the middle of Melbourne’s private school belt, would be allowed to continue to discriminate against boys. It’s not at all clear to me why the judgment has taken three weeks to emerge. One consequence, though, is that its crummy Charter analysis hasn’t gotten the contemporaneous criticism it deserves.

Preshil’s application was for exemptions from the EOA’s bans on discrimination against boys in education, the provision of services, requesting information and advertising. Of course, such discrimination is familiar in private schools, due to this provision:

38. An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group … may exclude- (a) people who are not of the particular sex, race, religious belief, age or age group…

But Preshil doesn’t qualify for this exemption, because isn’t a girl’s school, but rather a co-educational one. However, it is – or at least was – at risk of becoming more of a boys school, until it received an exemption from VCAT in 2005:

The material before me and Ms Millane’s affidavit sets out and compares the situation of gender balance at the school in May 2005 and August 2008. In 2005, the ratio of boys to girls was two to one or more at preparatory level, in grades 3, 4 and 5; in grade 6 (where there was one girl and 16 boys) and in years 7 and 10. In August 2008, boys and girls were at a ratio of or exceeding two to one in grade 6 and year 7, with ratios below but close to that figure in its age three nursery. In the other classes, the ratios are much closer and the gender balance, while not equal, does not show swamping. Preshil’s current waiting list has twenty boys and eight girls on it. In the last three years, the percentage of girls attending the school has increased, and the percentage of boys has declined slightly. The school attributes this improving gender balance to the operation of the exemption.

The exemption in particular seeks to offer scholarships and the like exclusively to girls and, in the classes with a 2-1 ratio, to stop taking boys altogether.

In Preshil, The Margaret Lyttle Memorial School (Anti-Discrimination Exemption) [2008] VCAT 241, VCAT Deputy President Cate McKenzie, who gave Preshil its exemption in 2005, gave it again in 2008:

There is possible discrimination here, but there is a significant public interest in granting the exemption. It promotes a coeducational choice at a school with a unique educational philosophy and environment. It prevents girls at the school being swamped in those classes where boys are in very great numbers, and so tries to ensure that boys and girls in all classes receive the same coeducational experience

‘Possible’ discrimination? What the hell is ‘possible’ about this? As a result of this exemption, a number of kids are going to miss out on Preshil’s unique educational philosophy simply because they have penises. Others will miss out on financial support for the same reason. It is discrimination (albeit discrimination that is routinely practiced by single sex schools.) 

McKenzie, readers might recall, both wrongly dodged and completely botched the Charter in granting a race discrimination  exemption to BAE Systems Australia a couple of months back. But, this time, she’s run out of (spurious) excuses and had to ‘apply’ the Charter:

I accept counsel’s submission that my conclusion is compatible with the Victorian Charter of Human Rights and Responsibilities. The school’s approach to coeducation is, in my view, consistent with a number rights in the Charter. For example, the school emphasises the individuality of the child and the freedom of thought, expression and belief. The exemption is aimed at fostering the school’s coeducational environment, and ensures that one sex is not disadvantaged relative to the other. To the extent that any human right in the Charter may be engaged, it is my view that the exemption represents a reasonable limit on that right in the terms set out in s7 of the Charter. The conditions to which the exemption is subject ensure that its operation is limited only to those situations where there is a substantial gender imbalance, and that it operates in the least restrictive way.

This is just gibberish. Where do I start?

It’s tomorrow

Thursday December 18th, a very big day for the Charter:

SUPREME COURT LIST FOR THURSDAY 18 DECEMBER 2008
http://www.supremecourt.vic.gov.au

C O U R T O F A P P E A L
===============================

CRIMINAL DIVISION
—————–

The President, Justice Nettle, Justice Redlich
Blue Court, Second Floor, 459 Lonsdale St, Melb.
9:30 – DPP v. Simon Vucko (For Judgment)

Justice Vincent, Justice Weinberg, Justice Robson
Green Court, Ground Floor, 459 Lonsdale St, Melb.
9:30 – R v. Kevin John Dickson (For Judgment)

Justice Buchanan, Justice Vincent, Justice Robson
Green Court, Ground Floor, 459 Lonsdale St, Melb.
9:45 – R v. CP (For Judgment)

The President, Justice Nettle, Justice Weinberg
Green Court, Ground Floor, 459 Lonsdale St, Melb.
10:00 – R v. Vipulkumar Gajjar (For Judgment)
10:00 – Cwlth DPP v. Daniel Hizhnikov (For Judgment)
11:00 – RJE v. Secretary to the Department of Justice (For Judgment)
11:00 – ARM v. Secretary to the Department of Justice (For Judgment)

There’s a stack of judgments due tomorrow, but all Charter eyes will be on RJE & ARM aka the sex fiends’ challenge. Stand by for (a) hopefully a major Charter analysis by the Court of Appeal, surely the most authorative judgment to date; (b) inevitably, some big big headlines in the Hun; (c) some tough choices for Rob Hulls. Unlike the taxi driver affair, he should be well briefed and ready to act on this one. But which statute will he be out defending?

Hulls’s Charter

Rob Hulls’s most important contribution to Victorian human rights law, after the Charter itself, is his promulgation,  on the last Friday before the last Christmas before the Charter came into full operation, of regulations exempting Victoria’s three parole boards from the definition of a public authority and, hence, from the Charter’s conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

To my knowledge, the decision has only been mentioned three times by the government: (1) by VEOHRC in its annual report, where one of its few negative comments was the lack of transparency in the decision; (2) by Hulls at an estimates hearing, where he attributed it to concerns about the parole boards having to give natural justice, and (3) by the current chair of the Adult Parole Board in its annual report, where it applauded the decision as a ‘prudent and responsible step’. 

The exemption is due to expire in 15 days. Here’s what Hulls said in June about his decision as to whether or not to extend the exemption:

They will have to put to me not only a very strong argument as to why they should be further exempted for a period of time but also, if they were not exempted, what resources they believe they would require to fully adhere to the charter. It may not be just a question of resources; that is true. It may well be, on the decisions they make and the timeliness of those decisions that they are required to make when they are dealing with people’s liberty — they do not give reasons for their decisions, as you are probably aware — as they have initially put to me, that it is important that they continue to operate in that way. As judges they admit that in all likelihood they are denying people natural justice. But that has always been how the parole board operates and if you change that, and you put in place a whole range of appeal rights and they have to give voluminous reasons for decisions and the like, it would tie down the work of the parole boards and, in their view, they could well become unworkable. That is their argument. I want to see for myself and get a better feel for the way the boards operate and I will make a decision in due course. that this was done for a period.

And here’s what I said about that same decision:

Time for some hyperbole: when someone writes a history of the Charter a few decades from now, I think that Hull’s decision, whichever way it goes, will feature as a key decision on the path to the Charter’s ultimate fate, whatever that is.

The relevant Charter provision is this one:

46(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Charter to be prescribed or necessary to be prescribed to give effect to this Charter.

(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to- (a) prescribing entities to be public authorities for the purposes of this Charter; and (b) prescribing entities not to be public authorities for the purposes of this Charter;…

Arguably, though, Hulls’s decision to promulgate the regulations or not is itself subject to the very conduct mandate that Hulls can exempt any public authority (himself included, presumably) from.

Today, a full four days earlier than I was expecting it, Rob Hulls committed to his choice:

Notice is hereby given under Section 17(2) of the Subordinate Legislation Act 1994 of the making of the following Statutory Rules: …

163. Statutory Rule: Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008

Authorising Act: Charter of Human Rights and Responsibilities Act 2006

Date of making: 16 December 2008

And here’s his choice:

Bell’s Charter

Today’s surprise announcement of Kirby’s replacement on the High Court had two immediate reactions from me: (1) McClelland went for a NSW judge who isn’t Basten?; and (2) why does her name ring a bell?

I am pleased to announce that the Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009. Justice Bell will be the 48th person, and the fourth woman, appointed to the High Court since Federation. Her Honour’s appointment will follow the retirement of the Honourable Justice Michael Kirby AC CMG after 13 years of outstanding service to Australia’s highest court.

Justice Bell is currently a Judge of Appeal of the NSW Supreme Court. Beginning her legal career at the Redfern Legal Centre in 1978, Justice Bell practised as a lawyer for over 20 years before being appointed a Judge of the NSW Supreme Court in 1999. Her Honour’s time in practice included service as a Public Defender, as Counsel Assisting the Royal Commission into the NSW Police Service, and as a part-time Commissioner of the NSW Law Reform Commission. Most recently Her Honour has also served as President of the Australasian Institute of Judicial Administration.

Ho ho. But I’m not kidding, as she actually has a significant Charter link. Indeed, she’s the first and (putting aside other judgements referring to her judgment) only non-Victoria judge to have mentioned Victoria’s Charter in a judgment to date. (As it happens, the other non-Victorian who came closest was he judge Bell is replacing, but he only did it second-hand, by citing an article by Evans and Evans.)

Her Charter moment is one I’ve covered on this blog before, in the context of critiquing passing mentions. The first and worst such mention was Callaway’s citation of Charter s. 7(2) as a reason to construe Victoria’s Serious Sex Offenders Monitoring Act (where the ‘monitoring’ can include requiring someone to ‘reside’ in the grounds of a prison) narrowly, simply because it reveals Victoria to be a glorious liberal democracy. This pointless Charter reference led NSW courts, at first, to refuse to follow Victoria’s Court of Appeal when it came to construing NSW’s similar (but slightly more draconian) legislation. And the judge who took that step was Bell:

In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that “The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.” (footnote [15].) In this respect it seems to me that the plaintiff’s submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.

I have to say that I don’t think much of this argument for not following the Victorian precedent (and nor, it seems, did the Court of Appeal.) But I think there are some quite positive spins to draw from this in terms of Bell and the Charter.

First, it arguably might signal her view that – unlike most Victorian judges – Bell does think the Charter is transformative, to the point that Victoria’s legal system should diverge more and more from the rest of the country (except the ACT.) That’s surely a good thing and, I suspect, one that will contrast with the Howard clones and Gummow.

Second, and more likely, it probably signals her distaste for the quite mild and garbled formulation that Callaway came up with after his pointless Charter mention. Recall that the NSWCA opted for comity with Victoria despite its preference for a standard that was much tougher than Callaway’s, equating the term ‘likely’ with ‘more likely than not’. Bell had adopted that standard in her judgment. And, as it happens, that’s exactly the standard that the Victorian Court of Appeal might adopt, applying the Charter, in the sex offenders’ challenge.

And that makes Bell’s appointment timely indeed, because that challenge is likely to be the first Charter case that makes it to the High Court. (Both parties, or at least both interveners, would be sure to appeal. The only thing that would stop the case reaching the Court is if the Court bizarrely rejects special leave or the Victorian government renders the matter moot by passing new, clearer legislation, though that would invite a further Charter challenge.) So, it’s pretty clear what standard Bell would opt for, Charter or not. Lucky that, as a NSW judge, she wouldn’t have to recuse herself from a case on a Victorian statute.

More broadly, this signals the main joy of Bell:

VCAT vs the Charter

Two interesting new Charter cases have emerged from that hotbed of Charter lip service, VCAT.  But I can only talk about one of them!

The public one is TGM Investments Pty Ltd v Rosenfield [2008] VCAT 2407, a retail tenancies dispute (although it’s not clear what the substantive issue is.) The procedural involves legal representation in VCAT. VCAT is a lawyer free haven, but there are exceptions:

62 (1) In any proceeding a party…  (b) may be represented by a professional advocate if- … (iii) another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented…

One party, TGM Investments, is described as being represented by ‘Mr D Anthony, Solicitor‘. So, the result is that the other party, Mr Rosenfield, is entitled to be represted by a ‘professional advocate’. The issue in this case is whether Rosenfield is entitled to be represented by his advocate of choice, a ‘Mr J Foster of Counsel’.

The problem is that Foster represented TGM three years ago in another retail tenancies matter. Moreover, it even involved the same ‘building’ (though not the same bit of the building.) The issue was raised between the parties during settlement negotations and TGM weren’t bothered, but it seems that that agreement has fallen apart. TGM has asked for Foster to be booted off Rosenfield’s case.

VCAT Senior Member Damien Cremean – who taught in a subject I coordinated here at Melbourne Law School last semester (hi Damien!) – granted TGM’s request. His main ground involved the risk (denied by Foster) that Foster might be privy to some sort of secrets gained from his service to TGM and that Foster may (for that or other reasons) be unable to meet the requirement of ‘purity of interest in the adversaries’ that Cremean suggested was required by VCAT’s statutory provisions demanding that its proceedings be conducted fairly. Personally, I have never been impressed by the view that lawyers somehow become affiliated to a party simply by representing them. It’s a view that simultaneously overvalues the service lawyers offer while denigrating their supposed professionalism. The confidential information issue is, by contrast, a real one, but it surely requires something a bit more solid than straight-out speculation.

What’s crucial is the other side of the coin: that Rosenfield is being denied a lawyer of his choice (while TGM has no such burder.) If this was a criminal matter, that’d be a breach of Charter s. 25(2)(d), but this is, instead, a civil matter. Nevertheless, surely fairness will typically involve legal represntation of choice; it definitely requires equality of arms, which seems to be a little shaky here. Cremean, however, cited the Charter in TGM’s favour:

I am concerned with the outward perception of the performance of the Tribunal’s duty under the Act particularly s97. The duty to act fairly could be seen to be compromised if I allowed a member of Counsel to appear against a client for which he previously acted not very long ago. The perception could be that he might have available to him or her information given in confidence and might, unwittingly, use it. This is especially so when the factual contexts in both cases are not dissimilar. It is important also to note the fair hearing right given by s24 of the Charter of Human Rights and Responsibilities Act 2006. I do not consider it proper in the circumstances to allow Mr Foster to appear.

A classic passing mention, in that it doesn’t pay much attention to such niceties as the relevant operational provisions and any compelling comparative law judgments. Interestingly, Cremean’s argument – which notably only seems to focus on the fair hearing rights of TGM – seems to be in breach of Charter s. 6(1), which says that only human beings have human rights and specifically denies them to corporations like TGM. I’m no fan of Charter s. 6(1), especially in this context, but its effect does seem to be that, at least under the Charter, it’s Rosenfield’s fair hearing right that should have been promoted (with TGM’s and VCAT’s interests demoted to a factor in a Charter s. 7(2) or Charter s. 38(2) analysis.) Oops.

Alas, there has been at least one more VCAT judgment on the Charter in recent times that goes way beyond a passing mention, raising a novel and interesting question about the requirements of Charter s. 33 , some familiar but interesting questions about the continued status of McMahon v Gould in light of the Charter, and does a reasonable, if not ultimately satisfying job, at grappling seriously with the operative provisions. Indeed, I’ve written a lengthy post of nearly 4000 words on the case and had it ready to go as soon as the judgment appeared publicly on Austlii. Alas, when I got a little tired of waiting for it to appear and inquired with VCAT about whether there was some sort of problem, I got a response late yesterday that – strangely, just yesterday! – President Bell issued an order suppressing the judgment – and any ‘disclosure or publication’ of it  –  until next month, except for the purposes of the parties who might wish to appeal. Was that my fault?

Doubtless, Bell has good reasons for his order. Arguably, he’d better have

The right to the Simpsons

Today’s headlines bring news of what we are told are some of the worst child pornography videos AFP officers have ever seen and the startling angle that ‘a retired Victorian QC’ is among those arrested.  We will, of course, never see those videos, nor is there any legitimate reason to think that anyone would want to, outside of the prosecution and defence of those offences.

But this week has also brought two other stories about materials alleged to consist of child abuse (here and here):

A NSW Supreme Court judge has ruled an internet cartoon in which lookalike child characters from The Simpsons engage in sexual acts is child pornography. In a landmark finding, Justice Michael Adams today upheld a decision convicting a man of possessing child pornography after the cartoons, depicting characters modelled on Bart, Lisa and Maggie engaging in sex acts, were found on his computer. The main issue of the case was whether a fictional cartoon character could “depict” a “person” under law. “If the persons were real, such depictions could never be permitted,”Justice Adams said in his judgement. “Their creation would constitute crimes at the very highest end of the criminal calendar.”

Queensland Police say it is a crime for anyone to even watch a viral video of a man swinging a baby around a room. Chris Illingworth, 60, a father of four from Maroochydore, was charged after he posted the video, which he stumbled across on YouTube, on an internet site. The video, which shows the man swinging the baby by the arms, was broadcast on US television and has been viewed by hundreds of thousands of people online. Illingworth’s home was raided after he posted the clip on Liveleak. He was charged with using the internet to access and publish child-abuse material. The charge has proven controversial because the baby – reportedly part of a Russian circus family – is shown laughing and smiling at the end of the clip… In a statement, Queensland Police said the term “child-abuse material” even extended to clips in which a child “appears” to be a victim of cruelty.

Having heard the descriptions of these videos, I have no interest in seeing them. But, that being said, I cannot, for even a second, regard people who do want to see them as wanting to harm anyone or otherwise deserving of anything other than wowserish condemnation. Moreover, and here’s a tricky catch, there’s clearly no way for anyone who doesn’t trust the above descriptions to check if they are correct or not, or to otherwise test whether my judgment on harm is correct: just looking at either of them, and in particular, possessing them on your computer, is a major crime that could land you in enormous and life-long trouble.

The culprit is the definitions that appear in the Commonwealth Criminal Code:

“child abuse material” means: (a) material that depicts a person, or a representation of a person, who: (i) is, or appears to be, under 18 years of age; and (ii) is, or appears to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or (b) material that describes a person who: (i) is, or is implied to be, under 18 years of age; and (ii) is, or is implied to be, a victim of torture, cruelty or physical abuse; and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

“child pornography material” means: (a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who: (i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); …  ; or (c) material that describes a person who is, or is implied to be, under 18 years of age and who: (i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons);… does this in a way that reasonable persons would regard as being, in all the circumstances, offensive…

Sections 474.19, 20, 22 & 23 create offences of downloading, uploading and possessing such internet-sourced material, punishable by ten years imprisonment and (presumably) attracted a host of secondary sanctions, not to mention headlines for the famous. 

I’ve previously covered a number of issues when it comes to such material. One narrow one is that children – a definition that extends to 17 year-olds – may produce this material and possess it themselves.  Another, the subject of major decisions overseas, is that ban on apparent, rather than actual, child porn or child abuse material, ranging from sophisticated computer generated images to simple doodling. As such material does not piggyback on actual abuse of children, any ‘reasonable limits’ justification for banning it must rest on the consequences of mere possession and viewing. The United States and Canadian Supreme Courts, by different routes, have held that it is contrary to the right to free speech to ban mere posession of fake porn, as opposed to trying to pass it off to others. A third, raised prominently by the Henson case, is that some material within these definitions may nevertheless have artistic (or some other) merit.

This week’s cases raise the latter two issues. In the case of Simpsons video (definitely) and the Liveleak video (arguably), no child is being harmed. Rather, the police’s case comes down to the ‘appearance’ of harm, something that is clearly caught by the above definitions. Given that, the sole apparent defence for possessing such material (or attempting to possess it) is whether or not ‘reasonable persons’ would regard the videos as being ‘offensive’.  Here’s the Criminal Code‘s take on offensiveness:

473.4 The matters to be taken into account in deciding for the purposes of this Part whether reasonable persons would regard particular material, or a particular use of a carriage service, as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults; and (b) the literary, artistic or educational merit (if any) of the material; and (c) the general character of the material (including whether it is of a medical, legal or scientific character).

Now, I have absolutely no idea whether or not either video meets this standard. The Simpsons video sounds like it won’t, of course, but that depends on how accurately it has been described. It it all just cartoon sexual abuse? Or is there some sort of ‘context’ – the trademark humour of the ‘real’ Simpsons – that might attenuate or even remove any offensiveness? As for the Liveleak video, what is described sounds much like just about ever ‘Funniest Home Video’ I’ve ever seen (and, you may recall, that programme had very high ratings.) But, of course, no-one surely would dare to check. Quite the chilling effect. (The issue of whether quite different material, statements to police during a criminal investigation, are child abuse material, and in particular, offensive, has recently been before the courts: see here, here and – a cliffhanger! –  here.)

But, as you can see, I have taken a dare, albeit one that is taken by Channel Ten most nights.

A Frank consultation

Oh, I’m very happy.  Not that I thought of this criterion in advance – in part because it never occured to me that it would be met – but who could be more ideal as head of the federal charter (oops, human rights) consultation but a Victorian who isn’t a Charter groupy  It’s the perfect mix of experience and independence. And his non-groupiness isn’t based on under-the-radar politicking, but simply some outspoken views about how rights should work that doesn’t fit the usual line.

[EDIT: Victorian? Nope. Why don’t I check these things? He’s based at ACU’s North Sydney campus, not its Melbourne one. Still, he’s clearly engaged with events in Victoria. Thanks to Andrew Bartlett for pulling me up.] [DOUBLE-EDIT: But, now I look at it, his phone numbers are Victorian! Or is that just the phone number of the ACU’s Institute of Legal Studies Fitzroy campus? His various degrees are spread along all the Eastern states.]

Most obviously (to me anyway) is his contribution to the major political debate on the Charter to date: the abortion bill, its non-conscience clause and Charter s. 48:

The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’

They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

Unless the Victorian upper house acts to amend those provisions of the bill which presently negate the freedom of thought, conscience, religion and belief of health professionals, the matter will need to be resolved by the courts.

Meanwhile the Catholic hospitals and conscientious health professionals opposed to abortion on demand are well justified in taking their stand against an unjust law which carries the hallmarks of totalitarianism. Any self-respecting civil libertarian should support them, regardless of their views on the morality of abortion on demand.

Some of the details are inaccurate, but the basic point is a suspicion of the human rights movement as engaged in preferential treatment of some pet issues and the adoption of political exemptions that is both miserly and misguided. I can’t see him backing the kind of cherry-picked and manipulatable Charter that the good folks on the  Victorian commmittee produced.

But he also has a fine ear to the costs of a rights-free system:

Without an overriding bill of rights, the judge does not have guidance from the legislature or the people about the priority of individual liberty and the common good to be applied to particular statutes or to discrete situations calling for a development of the common law. Without recourse to a bill of rights, the judge who has taken the oath to administer justice according to law must define the jurisdiction of the court and interpret the law without the benefit of a prior comprehensive, legislative endorsement of a hierarchy of rights and interests. The judge must find his way through an increasingly complex thicket of legislation which is not subject to any overriding codified set of rights and she must develop the common law where statute is silent with less assistance from judges from other jurisdictions whose decisions are increasingly guided by their own bills of rights.

That is, of course, the right answer to James Allan’s argument that rights turn judges into dictators. They are already dictators in the present system; a rights bill would at least give judges more scope for looking for some underlying values than common law history and the mysteries of local statutory interpretation.

How Brennan will walk the line between these two concerns remains to be seen, but I’ve no doubt that these are the key issues at stake in the rights consultation. As for the remainder of the Committee, I don’t know much about Tammy Williams, Mary Kostakidis or Mick Palmer, but the latter’s presence may offset a major problem with the Victorian one: an apparent lack of experience, attention or knowledge about what is likely to be the major area of effect of any rights law: criminal justice.

But what about the other components of today’s announcement: the terms of reference, the background paper, the Committee’s role, the support staff and timelines?: