Charterblog

On 1st February 2004, a sporting event was made momentarily interesting by the revelation of Janet Jackson’s right breast. Literally a moment; according to the court, a mere 9/16ths of a second (a statistic no doubt tallied by a forensic breast observer.) But that brief flicker gave us a classic bit of modern terminology, courtesy of Justin Timerberlake:

I am sorry if anyone was offended by the wardrobe malfunction during the halftime performance of the Super Bowl. It was not intentional and is regrettable.

Not quite so regrettable any more. Yesterday, it produced a fascinating new judgment on the limits to limits on free expression.

In CBS v FCC, the United States 3rd Circuit Court of Appeals overturned a fine imposed on the broadcast network by the US’s broadcast regulator, the Federal Communication Commission, pursuant to this provision of the United States Code:

18 § 1464 Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.

Weirdly, despite this provision apparently being drafted in the pre-TV era, American law has no difficulty with it being interpreted - by an executive body, no less - as extending to indecent broadcasts of images (but not to images sent by cable or satellite, which explains Comedy Central’s South Park.)

So, what is broadcast indecency, according to the FCC?:

[L]anguage that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, when there is a reasonable risk that children may be in the audience.

This definition was developed in response to comedian George Carlin’s famous monologue on seven dirty words you can’t (or couldn’t) say on television, namely: shit, piss, fuck, cunt, cocksucker, motherfucker and… tits. Hmmm, one of these words is not  like the others. How are ‘tits’ (in general, or Jackson’s right one in particular) ’sexual or excretory activities or organs’? Personally, I have my doubts about whether Jackson’s breast is an organ at all. Indeed, based on my close examination, it seems to have become one with the Borg. Anyway, half a million Americans who failed to blink at the right moment and instead looked long enough to become ‘outraged’ wrote to the FCC complaining that Jackson ruined the Superbowl. The result was the imposition of a half a million dollar fine (the result of tallying maximum fines for each of CBC’s 55 broadcasting affiliates.)

In contrast to Australian courts, US courts eschew ’second-guessing’ decisions by executive agencies, including how they interpret and apply their own statutes. Moreover, while indecency (as opposed to obscenity) is protected free speech under the US Constitution’s First Amendment, the courts have accepted that the unique context of broadcasting justifies limitations aimed at, particularly, protecting children. So, in this situation, US law is basically similar to Charter s. 15(3):

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons; or (b) for the protection of national security, public order, public health or public morality.

And that makes the US 3rd Circuit Court’s decision to nevertheless overturn the fine quite interesting for Victoria. Read more »

Another June VCAT decision newly uploaded to Austlii, MM (Guardianship) [2008] VCAT 1282 is yet another case on the interaction between the Charter and Victoria’s laws for controlling the mentally unwell.It is also part of a developing and worrying trend in non-analysis of Charter ss. 7(2) & 32.

MM, like Queensland’s Dennis Ferguson, has a history of sexual offences against young boys. Unlike Ferguson, controlling MM does not require further fraught recourse to the criminal justice system. Instead, because MM has a mild intellectual disability, he falls within the regime of Victoria’s new Disability Act 2006, in particular a division

…for the making of a civil order, a supervised treatment order, to enable the detention of a person with an intellectual disability who poses a significant risk of serious harm to others.

The Disability Act (for people with disabilities, including ‘intellectual disabilities’), like the Mental Health Act 1986 (for people with a ‘mental illness’), is subject to a modern set of interpretative principles, including a least intrusion principle; however, whereas the mentally ill can only be treated in their ‘best health interests’ and ‘never as a punishment or for the convenience of others’, that principle is missing from the equivalent principles for treating people with an intellectual disability. Indeed, people with a disability are deemed to have the same ‘rights and responsibilities‘ as others. Now, where have I heard that notion before?

The interesting question raised by MM is whether a compulsory treatment order can be imposed on a person who actually wants the treatment in question (or most of it.) MM has been on an interim treatment order in a ‘generally locked’ facility since the day the Disability Act commenced and has been gradually working his way up from the most restrictive ’stage 1′ to a less restrictive ’stage 3′. He wants to continue his treatment at the least restrictive ’stage 4′ but does not the order. (One difference is that the order would carry the prospect of being downgraded to more restrictive stages in some circumstances.)

Interestingly, no-one seems to doubt the genuineness of MM’s desire to be treated. However, a psychologist assessed his consent as follows:

Ms. Leigh-Smith expressed the opinion that MM was “unable but willing” to consent to voluntarily complying with a treatment plan to substantially reduce the significant risk of serious harm to another person. He appeared to be able to understand “at an intellectual level” the nature, purpose, benefits and risks of treatment, possible alternatives and the consequences of not receiving treatment. He appeared able to retain information in order to consider it and arrive at a decision. However, given MM’s “limited emotional insight”, Ms. Leigh-Smith questioned when considering the restrictive aspects of the treatment plan whether MM was able to integrate and analyse the emotional costs and consequences of participating in treatment. It was on this basis that Ms. Leigh-Smith was of the opinion that MM appeared unable to make “a fully informed decision” about his treatment plan.

In a sense, what MM is after is the converse of this Charter right:

10 A person must not be- … (c) subjected to medical… treatment without his or her full, free and informed consent.

MM wants to consent, to medical treatment but will he be allowed to?   Read more »

More bodginess! I’m more than a little baffled by a piece by Williams & McGarrity in Wednesday’s SMH. They argue that Evans v State of NSW [2008] FCFCA 130 shows the need for a federal charter of rights:

The protesters have won this round. Next time they are not likely to be so fortunate. The Federal Court decision illuminates the fragile nature of freedom of speech in Australia. The right deserves better protection than the legal presumption that Parliament does not intend to breach the right unless it sets this out in clear terms. It is long past time that such an important freedom was safeguarded in a national charter of human rights.

Now, there seem to be three things wrong with this argument:

First, we already have ‘better’ protection for free speech in Australia than the common law presumption against infringing rights: the Constitution’s freedom of political communication. True, it wasn’t tested in this case, because the Federal Court felt that they had interpreted away all of Evans’s and Pike’s problems. But, if interpretation wasn’t an option, there’s surely a good chance that the Constitutional remedy would have been available. Aside from the requirement of proving that their communication was ‘political’ - and, really, is there any doubt about that given the desire of Evans and Pike to talk about hotbed issues like same-sex marriage and state funding of religious events? - this Constitutional protection raises issues that are pretty damn similar to those under Charter s. 15(2). The big difference: the Constitution would actually invalidate the regs if they (or their head statute) couldn’t be read down. 

And that’s the second point: Read more »

Another VCAT Charter case has appeared on Austlii. Carwoode Pty Ltd v Cardinia SC (Red Dot) [2008] VCAT 1334 probably won’t appear on anyone’s list of great Charter moments. The case is a VCAT determination of a planning application to build some new ’service centres’ at the Pakenham bypass. The local council sat on the application too long and VCAT ruled that the centres can be built, lauding their encouragement of drivers to take a break and dismissing their impact on the local Growling Grass Frog population, although the tribunal felt that the centres were a bit over the top in their plans for multiple food outlets and separate drive through facilities.

 The facts don’t exactly scream Charter, nor do the main parties, neither of whom have rights under Charter s. 6(1):

6(1) Only persons have human rights. All persons have the human rights set out in Part 2.

Note Corporations do not have human rights.

But the objectors to the plan included two families (human beings, I assume) who owned nearby land, one of whom - the Hockings - brought a Senior Counsel to the hearing. David Denton SC raised quite a storm, arguing that VCAT had no jurisdiction due to earlier intervention by the Commonwealth on behalf of the frogs (an objection made six days into the planning hearing), spending an entire day cross-examining the applicant’s ecology expert on the subject of those frogs (to little effect, according to VCAT) and accusing him of improperly withholding information.

The Charter comes in because Denton also raised a slew of objections about the conduct of the hearing, complaining that the VCAT members had made an unaccompanied visit to the bypass site, that the order of proceedings left him having to address the court while unaware of the other parties’ submissions and that Tribunal invited written submissions on its preliminary views four days into the hearing. The Tribunal found that these procedures were all authorised by various sections of the VCAT Act:

80(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

97 The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

98(1) The Tribunal- (a) is bound by the rules of natural justice; (b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures; (c) may inform itself on any matter as it sees fit; (d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

129(1) If the presiding member considers it desirable for the purposes of a proceeding, the Tribunal may- (a) enter and inspect any land or building either in the presence of, or without, the parties.

But Denton argued that the Charter had changed the rules: Read more »

It isn’t only the anti-Charter mob who are gilding the lily. While I hate to bite the hand that feeds me, I have to comment on one aspect of HRLRC Director Phil Lynch’s otherwise sensible review of the first 18 months of the Charter:

It is almost two years since the Victorian Charter of Human Rights and Responsibilities received royal assent, 18 months since it entered into force, and 6 months since it became fully enforceable. While this makes it a little too early to evaluate whether the Charter is achieving its lofty aim of a ‘democratic and inclusive society that respects the rule of law, human dignity, equality and freedom’, it is sufficient to make some significant evidence-based observations…

Second, the courts have demonstrated that they are very adept at identifying which cases are meritorious and raise human rights concerns, and which are not. Channel 9’s attempt to rely on the ‘right to freedom of expression’ in its appeal against the suppression of ‘Underbelly’ was quickly dismissed. So too was Carl William’s attempt to obtain a stay of his criminal prosecution on the basis that his ‘lawyer of choice’, Peter Faris, was not available on the dates fixed by the court. Faris’ fees gave way to the importance of the efficient and expeditious administration of justice. On the other hand, the Charter – in particular the right to freedom from arbitrary detention – did play a very important role in a case which confirmed the fundamental principle that an innocent person should not be held in custody awaiting trial for a period longer even than he or she would serve if guilty of the offence…

Now, now. Read more »

Queensland Professor  of Law and Charter opponent, James Allan, tells readers of The Australian about the latest alleged Charter-induced outrage from his native Canada:

EACH year when I return from our family’s short mid-year trip to our native Canada, I come stocked with over-the-top examples of what the unelected judiciary can do with a bill of rights. This year’s is the most amazing one of all. You might even wonder if the judge was sane, or had overdosed on a steady diet of Boston Legal television viewing.

Here are the essential facts. A divorced father had custody of his 12-year-old daughter. The daughter accesses sites on the internet that the dad thought were inappropriate. So he tells her those sites are forbidden and, in particular, that she is not to post photos of herself on an online dating website. The daughter ignores her dad so he punishes her. He doesn’t smack her or ground her for a year. He forbids her attending the upcoming school year-end camping trip (which in Australian terms, is a fun end-of-year weekend trip run by the school).

What does the daughter do? She calls a lawyer. The lawyer goes to a judge and, relying on the bill of rights, challenges the girl’s punishment in court. Most readers, I’m pretty sure, will be thinking that if a child going on to inappropriate websites is not a solid ground for punishing the child, then it’s hard to see what is. But the judge - and a superior court judge at that - ruled that the father’s punishment was too harsh. It infringed the girl’s fundamental rights.

Quelle horreur! (It’s a Quebec case.) Also, quelle merde.

An internet search reveals that this case did the rounds of the media a month ago (including Australia) and sparked a wave of internet vitriol at the judge, Suzanne Tessier, not to mention the (’slut’) girl at the centre of the case. Even though it’s anonymised, it didn’t take much effort for me to locate a copy of the judgment on Canlii: Droit de la famille — 081485 [2008] QCCS 2709. Even someone with no French can see that this is a family law case and that ought to raise some alarm bells about the real story here. Moreover, if you peruse the judgment, you’ll see nary a mention of la Charte canadienne des droits et libertés or la Charte Quebecois des droits et libertés de la personne.

Fortunately, Google can produce what looks to be a quite passable machine translation of the judgment. It seems that Allan’s ‘essential facts’ omitted a couple of interesting points. First, at the time of the case, the girl was in ‘de facto custody’ of her mother, who wanted her child to go the camp. The case only arose because the school required the signature of both parents and dad (who had shared parental responsibility for her) refused.  Second, dad gave two reasons for opposing the school camp trip: (a) the ‘disciplinary measure’ he imposed on her; alas, the judgment doesn’t explain what that was about, so we’ll have to trust Allan on that (reluctantly, given the reliability of the rest of his column); and (b) concern about the ’safety’ of the 12 year-old during the trip. That second claim would spark worries in anyone who’s had any contact with family law.  The case has all the hallmarks of a bitter parental dispute, with a child caught in the middle. Third, the girl took the unusual step of making her own claim to override her dad’s parental responsibility on this issue - supported by Quebec’s Civil Code - only at the request of her court-appointed lawyer. The mother said she would have brought the claim herself otherwise.

Allan writes that if the judge had ‘a brain in his or her head’, she should have ‘laughed this thing out of court’. But you don’t have to trust him on this claim. If your French is patchy, here’s what google says that Judge Tessier said: Read more »

Art Monthly Australia has had a rough trot lately, but it appears to have won at least one battle:

The father of the young girl who posed naked on the cover of an art magazine has welcomed the Classification Board’s decision to approve the image as appropriate for publication. The board reviewed the entire July edition of Art Monthly magazine, which featured a naked image of six-year-old Olympia Nelson on the cover, taken by her mother Pollixeni Papapetrou in 2003. The board gave it an Unrestricted: M rating, which means it is suitable for publication, though discretion is advised for people under the age of 15.

But there’s a very significant caveat to this victory:

Several members of the board did not agree with the final decision, arguing the magazine, which also featured other artworks involving sexually graphic material, should have been given a Refused Classification rating, which would have prevented it from being sold to anyone, a spokeswoman said. “The minority was split on which images warranted the RC,” Clare Bowdler from the Classification Board said. “Those included the cover image and several images inside the publication.”

The article doesn’t reveal how many members comprised the Classification Board on this occasion (out of the 15 members.) Note that the Board’s decision can be reviewed at the request of any Attorney-General in Australia.

To see why the Board could split on this question (and why the Charter would make no difference), see this post.  To see why the minority view could have left Olympia Nelson’s Victorian parents at risk of a conviction for procuring child pornography, see this post.  To see why Art Monthly Australia shouldn’t count on funding from the Victorian government in the future, see this post.

The central question in the recent Charter-focused Mental Health Review Board ruling was what happens when this provision is breached:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

The respondent had been on a CTO since 2005, but the extension of his CTO in early 2007 was not only not reviewed within 8 weeks, but not reviewed at all prior to a further extension early this year. So, was his CTO still valid?

Ordinary law is good at posing questions like this but not at answering them. As the Brennan High Court observed in Project Blue Sky v ABA [1998] HCA 28:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.

Various High Court cases refer to such hard to pin down tests as parliament’s intent, the consequences of the various options and (in the unfortunate Gleeson era) circular tests about jurisdiction. The Mental Health Act has its own interpretative provision, but it also pushes in competing directions on this issue:

4(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-

(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and

(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.

Unsurprisingly, the MHRB favoured the interpretation that s30(4) had no effect on the validity of CTOs, a reading it said would preserve the best possible care of the mentally ill (continued compulsory treatment, naturally) while allowing the Board ‘an appropriate degree of flexibility’. (It did, however, hold that s30(4) required substantial compliance, although apparently this could be met by  not doing a review at all for twelve months!)

This sort of interpretative neverland is the raison d’être of the Charter’s interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

But there’s a problem: the Charter only contains a review right for criminal convictions and sentences (Charter s. 25(4)) or to a review of the lawfulness of detention  (Charter s. 21(7)). Even if CTOs were considered to involve detention (because of either the requirement to attend a medical facility for treatment or the potential for an order on where to live), Charter s. 21(7) wouldn’t assist in interpreting s. 30(4) because it is only satisfied by review by a court (rather than a tribunal like the MHRB.) So, what rights are engaged by a provision requiring a review? Read more »

Over at The Court, there’s an interesting post about the current challenge to the Supreme Court of Israel posed by Olmert’s Attorney-General, who the post paints as a nepotistic, disgruntled academic. I’ve long been interested in the Israeli Supreme Court given its role in a legal system with a largely unwritten constitution, a respect for the rule of law and constant local crises that challenge all that.

The Charter encourages interpreters of Victorian statutes to refer to all of the world’s courts that administer a human rights law:

32(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

I’m keen to fight the tendency to look at the usual Australian comparators: the UK, NZ, Canada and the US, as well as, sometimes, Ireland, HK and South Africa. But it’s hard to fight that trend, given the difficulty of understanding  non-common-law systems and the language barrier. ECtHR and UNHRC decisions overcome some of that, but they tend to have quite a distance from the coalface of reading laws and applying them in proceedings.

However, the Israeli Supreme Court’s judgments are availalbe in English. And this passage from the post on The Court has caught my eye:

Despite the lack of a formal constitution or bill of rights the Court held that as a democratic state fundamental human rights are part of Israel’s legal order. Legislation must be interpreted in order to give effect to such rights, administrative authorities may not restrict them without clear statutory power and in wielding discretion they must give them adequate weight.

Call me crazy, but isn’t that the interpretation mandate and the two wings of the conduct mandate?:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

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.

And I recall reading somewhere that the Israeli Supreme Court’s human rights jurisprudence was influential on Canada’s development of its reasonable limits clause, which Charter s. 7(2) is based upon.

Now, as I understand things, Israeli constitutional law has moved on with the passage of a basic law on (some) human rights and a declaration of ‘constitutional revolution’ (now that’s what I call activist!) in the 1990s, with the Court taking on a role of invalidating Knesset legislation. But I’m still might curious about how the earlier mandates operated. Alas, I find the search engine on the ISC site quite hard to work. So, here’s a question for readers: can anyone recommend a good (English-language) text on the Israeli Supreme Court’s human rights law, including prior to the revolution? I found this one on Amazon, but it’s hard to judge its quality and lots of law books don’t make it onto the internet titan.

[EDIT: Two updates: Read more »

Rachel Evans and Amber Pike are annoying people. Or, at least, they are worried that they may annoy some people in the next couple of days. They’re right to worry. They plan to speak to (and debate and leaflet and t-shirt and megaphone(!)) people about such thrilling topics as the Pope and his teachings on sexuality; same-sex marriage; abortion in Australia and abroad; Australia’s role in World Youth Day; and anti-gay education. Doubtless, lots of participants in World Youth Day have similar plans to talk to everyone about these exact same topics and will be similarly annoying.

But Evans and Pike differ from the World Youth in at least two ways: First, they’ll be handing out condoms; indeed, Pike will wear (a ‘giant’) one. Second, they - but not the participants - risk being dealt with under this clause of the World Youth Day Regulation 2008:

7(1) An authorised person may direct a person within a World Youth Day declared area to cease engaging in conduct that:… (b) causes annoyance or inconvenience to participants in a World Youth Day Event…

Thanks to the Federal Court, they no longer have to worry. Today, in Evans v State of NSW [2008] FCAFC 130, the Court issued this declaration:

[T]he Court will make a declaration that cl 7(1)(b) is invalid to the extent to which it is applied to conduct which causes annoyance to participants in World Youth Day events.

Unlike a declaration of inconsistent interpretation under the Charter, this particular declaration has legal effect; no-one can now require Pike and Evans to stop doing something just because they are annoying (although Pike and Evans will still have to watch out for other restrictions, like threatening someone’s safety or ‘inconveniencing’ a World Youth, not to mention regular criminal law.) This result was reached by ordinary statutory construction, albeit informed by the Constitution’s freedom of political communication.

Depending on what they think of the (pretty unpopular) regulation in question, opponents of human rights statutes will argue that this case is either an example of the dangers of such statutes or proof of why they are unnecessary. They may well be right, of course. But the case wouldn’t necessarily have been the same if the regulation in question was a Victorian regulation and hence subject to the Charter. Victoria has some annoying laws too. Here are some similarities and differences about the case would have been resolved if clause 7 had been passed south of the Murray:

Read more »

The new case from the Mental Health Review Board raises a difficult question about the retrospective operation of the Charter. The respondent wished to bring the Charter’s interpretation mandate to bear on the question of whether the MHRB’s failure to review the extension of his community treatment order in 2007  meant that the order became invalid. The problem is that the interpretation mandate didn’t exist at the time:

2(2) Divisions 3 and 4 of Part 3 come into operation on 1 January 2008.

For a change, this question isn’t a matter of applying the Charter’s transitional provision:

49(1) This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement

(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

(3) Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.

While it might be argued that the MHRB matter in some respects commenced in 2005 - when the respondent was first made the subject of an involuntary treatment order - or 2006 - when his CTO was first reviewed by the MHRB, everyone in this matter seems to have assumed that the proceeding either commenced in 2007 - when the contentious CTO extension made made and not reviewed - or 2008, when the MHRB belatedly decided to review the matter, thus keeping it free from the dreaded Charter s. 49(2). Charter s. 49(3) bars the operation of the conduct mandate (at least until 1/1/8) but not the interpretation mandate. And Charter s. 49(1) - which appears to cover the interpretation mandate - speaks only to the statutes it covers, rather than the conduct that might be affected by any re-interpretation.

So, can Charter s. 32 have any effect on matters before 1/1/8? The MHRB, adopting the argument of the Attorney-General (who is making a habit of this sort of Charter-shrinking stance) said ‘no’:

 It is the decision of the legal member that s2(2) sets out the commencement date of the Charter, clearly indicating that the Charter rights come into effect from 1 January 2007, but that Divisions 3 and 4 of Part 3 come into operation from 1 January 2008…. Therefore, it is the decision of the legal member that the Board can only cover the impact of the Charter on and from 1 January 2007, and is unable to apply it, in any respect, to… its interpretative powers under s32 before that date.

And this is just bad law. Commencement provisions are not transitional provisions. Rather, they simply define what ‘retrospective’ means for a particular provision. Whether the provision applies retrospectively is a matter of statutory interpretation. And that’s a complex question indeed.

Without a doubt, the most pertinent and comprehensive discussion of the very question of the retrospective operation of a human rights interpretation mandate occurred earlier this decade in the UK, notably, in Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40. There, the House of Lords said of its interpretation mandate (s. 3 of the UKHRA), in observations that could be equally made of Charter s. 32:

On its face section 3 is of general application. So far as possible legislation must be read and given effect in a way compatible with the Convention rights. Section 3 is retrospective in the sense that, expressly, it applies to legislation whenever enacted. Thus section 3 may have the effect of changing the interpretation and effect of legislation already in force. An interpretation appropriate before the Act came into force may have to be reconsidered and revised in post-Act proceedings. This effect of section 3(1) is implicit in section 3(2)(a) [which is similar to Charter ss. 49(1) & 32(3)] So much is clear.

Considerable difficulties, however, might arise if the new interpretation of legislation, consequent on an application of section 3, were always to apply to pre-Act events. It would mean that parties’ rights under existing legislation in respect of a transaction completed before the Act came into force could be changed overnight, to the benefit of one party and the prejudice of the other. This change, moreover, would operate capriciously, with the outcome depending on whether the parties’ rights were determined by a court before or after 2 October 2000. The outcome in one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. Parliament cannot have intended section 3(1) should operate in this unfair and arbitrary fashion.

The answer to this difficulty lies in the principle underlying the presumption against retrospective operation and the similar but rather narrower presumption against interference with vested interests. These are established presumptions but they are vague and imprecise.

The key point is that the House of Lords recognised (and the MHRB failed to recognise) that the presumption against retrospectivity is not a blanket rule but rather a rule to achieve a nuanced (or vague) purpose. Where that purpose - of preventing unfairness to people when the rules are suddenly changed -isn’t served (Lord Nicholls gave the significant example of post-commencement criminal prosecutions in relation to pre-commencement conduct where the rules shift in favour of the defendant), then retrospectivity is fine. The major sticking point is where legal rights have already ‘vested’ before the rules changed. This is what occurred in Wilson, where Ms Wilson got the benefit of a consumer protection law that voided a dodgy loan she signed purely because the lender had filled in the form wrong, leaving her with a free car and no debt; it would have been wrong, the Lords held, to re-interpret the law as having a less draconian impact on the lender’s contract, as that would have disturbed her rights under that law, which vested the moment the contract (briefly) came into existence.

By contrast, in the MHRB case, there are no vested rights or interests. The CTO was either valid or it wasn’t; it would be bizarre for the MHRB or the psychiatrist to say that they had a vested interest in that. Notably, the respondent was suing the MHRB or his psychiatrist for their conduct in making him take medicine for the last couple of years; he just wants out of his CTO now.

In fact, I think the House of Lords approach is so sensible that I’ve recently argued in the July LIJ that Charter s. 49(2) - which woefully excludes the Charter from proceedings started before 2007, not only retrospectively but prospectively - ought to be re-interpreted in light of Charter s. 32 so that it only excludes that operation in the circumstances set out by the House of Lords in Wilson. (More on that argument another time.) The silliness of the MHRB’s (and Attorney-General’s) approach is that it would exclude the retrospective operation of the Charter even in cases where Charter s. 49(2) doesn’t apply, effectively confining the impact of Charter s. 49(2) to its indefensible prospective effect. Crazy.

I’d argue the exact opposite:  in situations not covered by Charter s. 49(2) - that is, in proceedings commenced after 1/1/7 - the interpretation mandate should be fully operational to all events dealt with in the proceedings, no matter when they occurred. Here’s why: Read more »

Hot on the heels of the major new Charter judgment by the Mental Health Review Board, another briefer Charter judgment has appeared on Austlii, showing that June wasn’t so quiet after all. Director of Housing v TP (Residential Tenancies) [2008] VCAT 1275 was brought down three weeks ago and is the Director of Housing’s second attempt to obtain a ‘possession’ order (i.e. an eviction order) against TP, after the first was overturned by the Supreme Court for reasons that aren’t explained in this judgment. The facts of the case, at least those described in the judgment, are simply outrageous. It’s difficult to believe that the case ever got to VCAT, let alone beyond it. I really hope there’s something we don’t know about going on behind these scenes…

TP has been leasing her premises (managed by Aboriginal Housing) for fifteen years. She currently lives there with her four kids and is on two lengthy waiting lists for alternative housing, both to get extra space and in response to violence from DG, the father of two of her kids and the subject of a couple of two domestic violence orders obtained by TP. In March last year, DG showed up at TP’s premises after he was thrown out by his mother because he had brought pots of cannabis plants into her house. TP initially refused him entry, not least because of the cannabis pots he was carrying, but, ultimately, feeling threatened, she allowed him to stay. She insisted that he keep the pots outside while the kids were about, but he insisted on bringing them in at night. After three days, following an unidentified tip-off, the police arrived and arrested DG for cultivating cannabis. That’s the last she saw of him and his pots of pot, but it wasn’t the end of her trouble. Instead, two months later, she was served with an eviction notice by the DoH. Now, my first thought was that the DoH must have thought that the facts were somewhat different. However, in VCAT, it didn’t contest the facts but nevertheless continued to seek TP’s eviction.

The legal issue is whether the DoH could, in these circumstances, issue an eviction notice pursuant to the Residential Tenancies Act 1997:

250(1) A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.

This is a tricky question, because s250(1) isn’t triggered by the simple fact that a crime occurred in a rented premises. Instead, the premises must be ‘used’ for that illegal (in this case, criminal) purpose. Illegality in premises can range from a permanent installation of cultivation equipment (clearly a ‘use’ of the premises) through to someone visiting with an E in their pocket (clearly not.) The DoH argued that TP’s premises were ‘used’ to provide shelter and security for DG’s cultivation of pot, but VCAT member Genevieve Nihill disagreed She felt that the mere presence of DG’s pots in TP’s garden and laundry - given the transience of DG’s stay (albeit only because of police interruption) and the primary use of the premises as a residence for TP and her kids - were at the other end of the use ‘continuum’. Indeed, Nihill wryly - if tangentially - observed that DG’s pots were not much more of a use of TP’s premises than the equally criminal violence DG had perpetrated against TP there on other occasions.

While that settled the issue, Nihill - unprompted by the parties - raised the Charter as a fallback argument, in particular Charter s. 13(a) (privacy) and Charter s. 17 (protection of families and kids):

In this case, if section 250 were interpreted in the context of these facts, so that the premises were said to have been used for an illegal purpose, the tenant and her children would have been evicted from their home of fifteen years. They may have faced the prospect of extended homelessness. On the other hand, the only interference to the rights of the landlord appears to have been that for three days last year a person stayed in the rented premises with some cannabis plants. If the fact situation of the case had placed it close to the half way mark along the continuum, an interpretation of the statutory provision in accordance with the Charter may have tipped it to one side.

If Nihill’s right, then more significant connections between illegal acts and the premises wouldn’t be enough to justify eviction. Maybe s. 250 wouldn’t have been satisfied even if the cannabis had stayed for a month, or was TP’s or one of her kids’, or DG did some dealing on the premises. If so, the Charter’s going to make a significant difference to Victorian rental law and practice. So, DoH v TP is an interesting judgment indeed.

But is Nihill right? Read more »

Many thanks to Phil Lynch at HRLRC for forwarding me a judgment of the Mental Health Review Board, brought down on Tuesday. And here’s the excitement: of its 43 pages and 247 paragraphs, about half of them  - particularly 12 pages and 53 paragraphs of actual analysis by the Board - aredevoted to the Charter. That is easily more Charter analysis than has appeared in all the reported Charter judgments in Victoria combined. In fact, I’m pretty sure that it’s more than anything that has appeared in all the ACT judgments on the HRA combined as well. It is, in short, what I’ve long been waiting for: a detailed, step-by-step, analysis of some key operational and rights provisions of the Charter in an actual contested tral, where it’s obvious that both parties have made full arguments on these points and the decision-maker has taken those arguments seriously.

The downsides: It’s not a formal precedent in any way, as the MHRB is not a court. Indeed, the MHRB doesn’t even have to be comprised of lawyers, though any questions of law must be resolved by the Board’s legal member, in this case a Mr John Lesser. On the other hand, lawyers represented each side and the Attorney-General intervened and was made a party. The judgment doesn’t carry an official name and is not available on Austlii (whose database on MHRB judgments seems to have died sometime in 2006.) Nor is it available on the MHRB website. But perhaps it’ll be posted on the HRLRC website or somewhere soon enough. Anyway, I have it, thanks to Phil Lynch. [EDIT: Alas, the judgment isn't publishable as it needs anonymising. I'll refer to the man involved as 'the respondent', until I can come up with something better. For a detailed description and critique of the judgment, see Lynch's analysis. FURTHER UPDATE: The anonymised judgment has now been published here.]

Here’s the short summary (and it’s a weird and new experience indeed to have more than two lines to ’summarise’; it took me over an hour to read the thing once, and I will need to read it several times more!):

Back in 2005, the respondent was placed on a community treatment order (CTO) by his psychiatrist. CTOs are the mildest form of coercive power used against people with mental illnesses and are available when people have been made the subject of an involuntary treatment order (which can authorise someone’s detention for the purpose of being treatment) but a psychiatrist decides that detention isn’t necessary:

14(2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service.

(3) A community treatment order- (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person’s mental illness.

Clearly,  ‘Mildest’ doesn’t mean ‘mild’.  The respondent in particular is very unhappy about his and wants out of it, so he can stop taking his medication and move on to milder treatment like valium.

CTOs expire twelve months after they are made but they can be extended. GK’s CTO has been extended three times: in April 2006 (by the MHRB), in February 2007 (by the respondent’s psychiatrist) and January 2008 (again by his psychiatrist.) The problem is at the February extension was never reviewed by the MHRB as required by this provision of the Mental Health Act 1986:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

As is often the way, s30(4) doesn’t specify any consequences for breach. The respondent argues that the breach meant that his CTO expired sometime in 2007 and that the purported extension in 2008 and the planned review of it by the MHRB that was about to happen couldn’t happen, with the result that GK is free to stop taking his medication until his psychiatrist restarts the whole process. But the alternative argument is that nothing happened to the CTO and GK remains subject to a CTO. So, the principal (but not sole) question for the MHRB is a question of statutory interpretation: what are the consequences of a breach of s30(4) of the Mental Health Act 1986? This question is a tricky one in statutory interpretation and their are competing High Court cases on the issue. Applying non-Charter law, the MHRB, perhaps unsurprisingly, rejected the respondent’s interpretation. But what difference does the Charter make? Read more »

The judgement is now out on the controversial decision of Queensland District Court judge Hugh Bottling to stop the coming trial of ‘Australian child sex offender’ (as his Wikipedia entry puts it) Dennis Ferguson for child sex offences. The fact that Ferguson is a prior offender is, of course, the problem for everyone.

For the court, the problem was that, given some extraordinary media coverage, public commentary and internet articles, the jury would inevitably know what Ferguson was and that at least some jurors would be unable ‘to bring the dispassionate judgment which the law requires to a consideration of the evidence.’ In Charter terms, if Ferguson was tried in Victoria, he would be denied this right:

24(1) A person charged with a criminal offence… has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

But not having a trial is a problem for much of the Queensland public, who never thought Ferguson should have been released for his original sex offences in the first place, despite the small matter that his sentence for those offences had expired.

Legislation designed to deal with just this situation, the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (which the High Court uncourageously upheld in Fardon v Attorney-General (Qld) [2004] HCA 46), only applies to people who are still serving a sentence (presumably due to the Queensland government’s fear that allowing a person to be re-imprisoned wouldn’t have looked so good in the High Court, though I’m not sure they needed to worry.) But, alas, Ferguson’s release in January 2003 preceded (and, indeed caused) the passage of the new Act, which commenced in June 2003. Hence the convenience of the current charges against Ferguson for offences allegedly committed on November 2005, which have kept him inside on remand for two-and-a-half years.  And the inconvenience of Bottling DCJ’s order, which not only prevented the trial from actually happening, but, more importantly, meant that Ferguson was back on the outside. The charges related to relatively mild conduct - touching the outside of two young girls’ clothes in their groin region - so, Ferguson would probably not have been sentenced to a prison for much longer than the time he had spent on remand. But even one day as a prisoner serving a sentence would be enough to bring him within the reach of the Dangerous Prisoners Act.

It’s against this unhappy background that Bottling DCJ’s judgement raises a big debate in Australian law (and, in particular, in some high profile current prosecutions, such as the coming trials of Jayant Patel and Tony Mokbel): is it ever appropriate to not try someone in the absence of misconduct by police, prosecutors or courts, or some other procedural defect like the absence of legal representation? The Australian common law rule is that a permanent stay of prosecution is only to be granted if other mechanisms - suppression, delay and directions - can’t do the trick. Crucially, the High Court has held that this means that a stay can only be given in ‘exceptional circumstances’. This is a funny kind of test, as irreparable unfairness is not necessarily something that is exceptional; the kind of widespread public knowledge of someone’s priors that occured in this case could - if the right website experiences one of those massive waves of popularity that characterises the internet - become quite common in rape cases. And it might also be a standard situation in other categories of high profile crimes, such as serial killing, terrorism or organised crime. Behind all the fear-mongering about Ferguson is the prospect that entire categories of crime could be unprosecutable. Are the problems of fighting these sorts of a crimes (and the specific costs to individuals of never having a trial) enough to justify a law that limits Charter s. 24(1)? I’ll pause here while most of the legal community screams abuse at the screen for a moment… Read more »

Yet another tragic loss of innocence today. This time, the sweet young things who edit Art Monthly Australia have had their childish illusions that our politicians are anything other than opportunists or morons brutally ripped from their adorable virgin minds. According to darling little editor Maurice O’Riordan:

The choice of Papapetrou’s Olympia as Lewis Carroll’s Beatrice Hatch before White Cliffs (2003) for our cover may be seen as controversial but is made in the hope of restoring some dignity to the debate; to validate nudity and childhood as subjects for art; to surrender to the power of the imagination (in children and adults) and dialogue without crippling them through fear-mongering and repression.

Oh sweetheart. Restoring some dignity? “If you ask for my personal view, no it doesn’t. It does the reverse,” said PM Howard, I mean Rudd, but what’s the difference?:

My view hasn’t changed on this. We’re talking about the innocence of little children here. A little child cannot answer for themselves about whether they wish to be depicted in this way. I have very deep, strong, personal views on this, which is that we should be on about maximising the protection of children. I don’t think this is a step in the right direction at all.

Premier Iemma chimed in with similar musing. Neither of these men appear able to stop thinking and thinking and thinking about the little girls and their innocence. At least someone’s thinking of the children. Iemma’s Minister Kevin Greene has even referred Art Monthly to the Commonwealth’s Classification Board. Gee, I wonder how that will go?

Anyway, I slight legal point for the Charter, because the pollies have found an alternative to the police as a way to out-do eachother in their race to be the biggest lover of kids. Art Monthly are going to lose more than their innocence, it seems:

“I understand they are in receipt of funding from the Arts Council and I assume there are procedures where that can be reviewed by Mr Rudd and his ministers,” Mr O’Farrell said. “I notice (Premier) Morris Iemma hasn’t ruled them out receiving state government funds in the future. The public are furious about the double standards, I think taxpayers are angry when they see funds used in this way and to review it, I think, would be sensible.”

But is Art Monthly sponsored by a Victorian body too? [EDIT: Apparently not, since 2005.] The magazine’s website is surprisingly vague about its funding base:

Over the eighteen year-life of the magazine it has been vigorously supported by the Australia Council, initially with annual funding and now with triennial funding. The magazine has also sought and received some funding from state and territory arts funding bodies.

Not much of a plug there for its state and territory sponsors. I’m thinking they don’t give much. But, anyway, what would be the Charter consequences if Arts Victoria announced that it was going to withdraw or decline future funding on the basis of Art Monthly’s choice of covers? Read more »

Damn. I suspect there’s a downside to all this blogging: I’m out of practice when it comes to two-way debate. This afternoon, I was part of a panel at the Crown Prosecutors’ Conference on Human Rights in an Age of Terror. The other speakers included Peter Faris and Mirko Bargaric (who either don’t read this blog or bear no grudges - and I assume the latter.) Most of the afternoon was a fight between Faris and Julian Burnside on the threat posed by terrorism.

I deliberately stayed out of that, instead arguing about less extreme clashes of rights and focused on Keelty’s call for a terror blackout. Of course, I also criticised the OPP’s and Court of Appeal’s efforts in suppressing Underbelly, arguing that it might made Goussis’s trial less fair by creating a demand (readily met) for information about him, including the dangerous fact that he had a prior conviction for a gangland murder. Needless to say, my views on Underbelly didn’t go down well and one Crown Prosecutor (Geoffrey Horgan, I assume, though I have no idea who’s who) ran the arguments that the suppression was the fault of Nine in failing to ask permission and that Underbelly would have prejudiced the jury, getting a round of applause and the only agreement for the afternoon from Bagaric and Bunside. And, a rarety for me, I let it ride and am now experiencing ‘15 minutes later’ remorse.

So, I’ll just quickly get off my chest what I should have said: that ‘prejudice’ in this context is based on an assumption: that jurors aren’t (or can’t be trusted to be) discerning users of the media.  And there are three things to say about such an assumption. First, that its ubiquity amongst lawyers (who, of course, are assumed to be discerning) has the inevitable and very unfortunate corollary that jurors, and hence the wider public, must be denied access to media about ongoing prosecutions. Second, that it is 100% incompatible with the role jurors are given in the criminal justice system, which assumes that they are discerning when it comes to witness testimony, other evidence and counsels’ arguments. And, third,  that’s it’s inconsistent with empirical evidence. Michael Chesterman’s study of real NSW jurors involved in high profile trials, where he questioned them about their use of the media, reached the following conclusions: Read more »

The prosecution of a nameless teen, where every development in an otherwise mundane case is carefully tracked by the Victorian media, goes on and the teen’s fighting:

A VICTORIAN teen accused of producing child porn and creating a public nuisance will fight the charges in the Children’s Court. The eastern suburbs boy, 17, faced the court today ahead of a two-day contested hearing booked for August. His defence laywer told the court the public nuisance charge was unusual. The police prosecutor agreed he couldn’t find any other court matters where this charge had been laid.

The court heard five police and six civilian witnesses would be called to give evidence at the hearing, including a partygoer who made a statement to police about crowd behaviour. A handy-cam allegedly used to film a couple involved alleged sex acts was handed to police by the teen’s step-father, the defence lawyer told the court. The boy is charged with one count each of creating a public nuisance and producing child pornography. A magistrate extended his bail. He will appear again in court on August 18.

The teen may be able to take advantage of Victoria’s Charter. As I suggested when the teen was first charged, the bringing of major charges in a case like this seems quite weird.

Dodgy parties, if they merit criminal prosecution at all, can be charged with all manner of summary offences, including ‘playing at a game to the annoyance of anyone‘, ‘footpath obstruction‘ and abetting ‘drunken disorderliness in a public place‘, as well as some standard offences relating to being drunk or offensive. All these offences carry fines or tiny terms of imprisonment. So, why have the police instead dug through the list of common law crimes for the rarely (if ever) used offence of ‘public nuisance’, which carries a maximum of five years imprisonment? The decision to prosecute smacks of an attempt to teach the lad a lesson and obstruct his dealings with the media. And that raises the interesting question of the interaction of these provisions:

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

21(2) A person must not be subjected to arbitrary arrest or detention.

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.

Victoria Police, of course, are a public authority. So, there seems to be an argument that bringing the charge of public nuisance scarcely seems to fit with the teen’s best interests and, depending on their motivation, might be arbitrary (at least if the teen was arrested.) While the House of Lords recently cast some doubt on whether charging decisions can limit rights, their reasoning (such as it was) may be of limited relevance to Victoria, where courts are exempted from the Charter. So, the burden of keeping discretionary criminal justice compatible with human rights falls to the police. For this reason, I’m also dubious that the mere availability of the charge under Victorian law provides the police with a defence under Charter s. 38(2).

And what about the charge of producing child pornography? Well, any film of one or more minors (or even apparent minors) involved in ’sex acts’ fits the definition of child pornography. 

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context

And, unless the teen is quite an artiste with his handicam, he can’t rely on the Commonwealth Classification Board to save the day with a PG rating. Alas, he’s part of a weird trend (and a disturbing statutory quirk) in Victorian prosecutions: Read more »

Previously on Charterblog:

Freidrich von Metzler, banker: “My son has disappeared and someone wants… one million Euros!”

Magnus Gäfgen, law student: “Jakob’s still alive, but I won’t say where!”

Wolfgang Daschner, Vice President of the Frankfurt Police: “Tell me where or my colleague will inflict great pain (but no injuries!)”

Magnus Gäfgen: “I killed Jakob. I’ll show you where to find his body and some other evidence implicating me!”

Frankfurt Regional Court: “Daschner, I sentence you to a suspended fine. Gäfgen, I sentence you to life imprisonment! “

Magnus Gäfgen: “What about my human rights? Also, I want money!”

The following takes place between Article 3 (right against torture) and Article 6(1) (right to a fair hearing) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (but the rights are the same in the Charter.) Events take place in surreal time.

In last night’s decision, Gäfgen v Germany [2008] ECHR 565, a seven judge chamber of the European Court of Human Rights, despite rejecting Gäfgen’s claims that he was threatened with rape and pain even after the police realised that Jakob was dead, held that the young law student, killer and incompetent blackmailer was treated inhumanely, albeit with ‘mitigating factors’:

The Court would like to underline in this connection that in view of the absolute prohibition of treatment contrary to Article 3 irrespective of the conduct of the person concerned and even in the event of a public emergency threatening the life of the nation – or, a fortiori, of an individual – the prohibition on ill-treatment of a person in order to extract information from him applies irrespective of the reasons for which the authorities wish to extract a statement, be it to save a person’s life or to further criminal investigations. Moreover, the applicant’s treatment must be considered to have caused him considerable mental suffering, which is also illustrated by the fact that, having persistently refused to make correct statements until then, he confessed under the influence of such treatment where he had hidden J. Thus, the Court finds that the treatment the applicant was threatened with would, if carried out, amount to torture.

However, the questioning lasted for some ten minutes only and, as was established in the criminal proceedings against the police officers (see paragraph 46 above), took place in an atmosphere of heightened tension and emotions owing to the fact that the police officers, who were completely exhausted and under extreme pressure, believed that they had only a few hours to save J.’s life, elements which can be regarded as mitigating factors… Furthermore, the threats of ill-treatment were not put into practice and have not been shown to have had any serious long-term consequences for the applicant’s health. 70. In the light of the above, the Court considers that in the course of the questioning by E. on 1 October 2002 the applicant was subjected to inhuman treatment prohibited by Article 3 of the Convention.

But six judges of the court held that the German courts had already provided Gäfgen with sufficient remedies for his treatment, as they had recognised that the law student was treated illegally and that his rights were breached, exposed his tormentors to career penalties and thrown out the confessions Gäfgen made in the days and weeks after the treatment:

It is true that the applicant has not to date obtained payment of any compensation in the official liability proceedings he instituted against the Land of Hesse; these proceedings are currently still pending. Having regard to all the circumstances of the case, the Court finds, however, that in a case such as the present one, in which the breach of Article 3 lies in a threat of ill-treatment (as opposed to actual physical ill-treatment attaining the threshold for Article 3 to apply), redress for this breach is essentially granted by the effective prosecution and conviction of the persons responsible. The Court finds that, not least in view of the wide public approval of the treatment to which the applicant was subjected, the criminal conviction of the police officers responsible, which acknowledged in an unequivocal manner that the applicant had been the victim of prohibited ill-treatment, was essential in affording him redress in a manner other than by the payment of a sum of money.

So, Gägner might have got some money if he had been courageous in the face of the threat of torture to the point where the German police actually had to torture him. Or if the German people hadn’t been so solid in their support for the threats. Or if his almost-torturers hadn’t been given a slap on the wrist…

And what about the small matter that Gäfgen is serving a life sentence based on a trial that was full of evidence that he had directed the police to immediately after he was threatened with torture? Read more »

Today marks thirty days since the last reported Charter case (Zierk, on 30th May.) I’m basing this on Austlii reporting, which covers the VSC, VCA and VCAT, but not the Magistrates’ or County Courts. That’s the whole month of June, the sixth month of the Charter’s full operation, without this major statute being so much as mentioned by the state’s top court and administrative law workhorse.

What does this mean? Here’s some possibilities:

First, it could just be a statistical blip (something that’s almost inevitable given the tiny sample size.) Last month, May, there were six cases that got a Charter mention, compared to one in April, so this month might have some evening up. On the other hand, I can’t see next month being big, with the winter recess and all. And surely everyone was expecting the numbers to grow as the year progressed?

Second, it could be a welcome development: a decline in pointless passing mentions of the Charter that do little more than pay symbolic lip service to a statute that has a number of non-symbolic and highly complex provisions.

Third, it could be a worrying development, pointing to a gap in confidence or access to the Charter amongst litigants. There are a number of potential culprits: (a) the stupid transitional provision, Charter s. 49(2) (though its effect should be declining as time passes.) (b) the notice provision, Charter s. 35 (which Bongiorno J reckons imposes a mandatory delay as a penalty for raising the Charter, but which I don’t think requires that at all) (c) s78B of the Judiciary Act 1903 (Cth), which - in combination with some dubious constitutional arguments being put by the Attorney-General and some dubious refusals by the courts to apply its expedition provisions - will impose mandatory delays and costs as a penalty for raising the Charter; (d) the Charter’s numerous drafting problems, which might have scared off litigants who don’t want to hire a QC to nut out all the weirdness; (e) the Charter’s many gaps and loopholes, which might have narrowed its potential operation to too few cases.

Despite mulling this over, I really have no idea what is going on. For all I know, there have been heaps of Charter cases but in the lower courts or settled before any judgment is reached. And there may be a stack in the pipeline.

But, from my Austlii-based perspective, there did seem to me to me a fair number of openings for Charter arguments in the last month. Here are some from just the past week from the Supreme Court: Read more »

The TV series 24 - whose shtick is its real time format, where every second on your TV equates to a second of plot development - was originally pitched with a plot about a couple on their wedding day. But it was quickly switched to a terrorism drama, which it has maintained for six seasons now. Terrorism is a natural for the real time format, because of the recurrence of ticking bombs, inevitably with red LED countdowns, or their equivalents: ticking viruses, ticking nerve gas, ticking nukes, ticking deaths of all varieties.

And all that ticking has given the show its signature moral dilemma: what do you do when the one person who knows where the bomb (or equivalent) is won’t tell you? For Jack Bauer, the series protagonist, there’s no dilemma at all. He just tortures them with whatever’s handy: drugs, an electric cord, even a towel. The series writers know where they stand, because Bauer’s approach usually (though not always) saves more lives than its costs.

But, in real life, there’s a legal issue. In 1999, the Supreme Court of Israel was asked to rule on the legality of torture in a hypothetical ticking bomb situation, in a case on whether the state security service could apply low level torture methods (akin to those approved by Bush) on suspected terrorists:

In the course of their argument, the state presented the “ticking bomb” argument. A given suspect is arrested by the GSS. He holds information regarding the location of a bomb that was set and will imminently explode. There is no way to diffuse the bomb without this information. If the information is obtained, the bomb may be neutralized. If the bomb is not neutralized, scores will be killed and injured. Is a GSS investigator authorized to employ physical means in order to obtain this information?

The Supreme Court ruled that the criminal law defence of necessity could not provide any advance authority for torture, because the nature of the defence was an improvised response to an emergency. However, the Court did not resolve two further questions:

We are not dealing with the criminal liability of a GSS investigator who employed physical interrogation methods under circumstances of “necessity.” Nor are we addressing the issue of the admissibility or probative value of evidence obtained as a result of a GSS investigator’s application of physical means against a suspect.

In the last couple of years, Germany’s courts have had to deal with both of these questions in an extraordinary non-terrorism case. And, this Monday, the European Court of Human Rights will have to resolve the second one.

In 2002, 11-year-old Jakob von Metzler disappeared shortly after getting off his school bus. An hour later, a ransom letter was sent to the boy’s family - his father was a senior bank executive - demanding 1 million Euro. The money was dropped off at a tram station and the police observed a law student, Magnus Gäfgen, the brother of a friend of Jakob’s, picking it up. Gäfgen, who later said that he wanted to impress his wealthy girlfriend and lead a life of luxury that matched his planned status as a lawyer, banked part of the money. He was arrested at Frankfurt airport trying to leave the country. At his interrogation in Frankfurt’s central police station, the law student accused others of perpetrating the kidnapping and claimed that the boy was alive, citing several hiding places none of which yielded Jakob. Cue the ticking clock.

Concerned that the boy was starving or exposed to the elements somewhere, the Vice President of the Frankfurt police, Wolfgang Daschner, signed an official note ordering a subordinate to inflict pain on Gäfgen (without causing ‘injuries’) under medical supervision. Within ten minutes of being confronted with this threat (which Gäfgen claimed included the prospect of being raped by fellow detainees) and without any inflicting of actual pain, Gäfgen confessed that he had killed Jakob and directed the police to the lake where the body had been dumped and other evidence tied Gäfgen to the kidnapping. Gäfgen later confessed to the murder and kidnapping to the police and  before a court. These events created an extreme dilemma for the German courts. What were they to do now with Gäfgen and Daschner? Read more »