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.

Continue reading

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: Continue reading

New Year’s Eve resolutions

lead-nye-fireworks-300x368And 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. Continue reading

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. Continue reading

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.   Continue reading

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. Continue reading