A flotilla of vessels is today protesting the arrival of the Queen of the Netherlands – a ship, rather than a monarch – which will soon commence the controversial dredging of Port Phillip Bay. Those vessels’ activities were hampered by a declaration by the Director of Marine Safety under s. 15 of the Marine Act 1988 that bars bathing, diving and the operation of vessels 200m from the Queen (while she’s ‘underway’) and 50m from her (while she’s ‘anchored, moored or birthed’). The Act provides for fines of four penalty points (and more for later offences), but so far the police are simply yelling at offenders to move away (and they’re listening.)
The compatibility of this action with the Charter was addressed – indirectly – in Parliament last year Continue reading
Late last year, the government promulgated some new regulations under the Charter, excluding all three of Victoria’s parole boards – the Adult Parole Board, the Youth Residential Board and the Youth Parole Board – from the definition of ‘public authority’ and, hence from the conduct mandate. They would otherwise have easily been within the definition under Charter s. 4(1)(b), which covers entities established by Victorian legislation that have public functions. The exclusion (under Charter s. 4(1)(k)) operates until the end of this year.
According to the HRLRC, ‘[t]he Regulations were made to enable the Boards to undertake further activities to ensure the compliance of their policies and operations with human rights before such compliance becomes a legal obligation’. So, apparently, the nearly eighteen months since the Charter was enacted weren’t enough to do this (even though they were enough for, say, government departments, Victoria Police, local councils and the courts, amongst many others.) This is especially odd, because the Charter’s difficult criminal process rights don’t apply to parole board decisions; they all expire on sentencing at the latest. So, instead, the parole boards only have to get up to speed on basic rights like equality, humane treatment, privacy and freedom of expression. Hardly burdensome, I would have thought. Actually, it’s the interpretation mandate that would be more stressful for them, as it potentially changes the meaning of the two acts that govern them. The regulations can’t solve that problem; that would require an override declaration.
This smacks of base politics. Either a turf fight between corrections and justice or the Brumby government trying to head off a Herald Sun beat-up that the Charter will require the release of dangerous criminals into the streets. Not a good start.
Ragg v Magistrates Court of Victoria & Corcoris  VSC 1 is the third reported case to expressly hold that the Charter doesn’t affect the issues it addresses. However, it’s the first case to do so in 2008, after the Charter’s operative provisions had commenced. Like two pre-2008 cases, the court held that s. 49(2), one of the Charter’s transitional provisions, stopped the Charter from applying.
Jarod Ragg is a federal cop who’d been given a summons to produce documents under s. 43 of the Magistrates Courts Act 1989. (These were once known as subpoena decus tecum. As my Prac/Proc lecturer taught me: ‘Decus’ means documents and ‘tecum’ means you have to take’em to court.) The summons was from businessman Nicholas Corcoris (pictured), who is charged with multiple counts of tax evasion and wants the documents to test the evidence against him at his committal in March this year. Corcoris wasn’t happy with what the police had chosen to give him and managed to get someone (presumably a registrar at the Magistrates Court) to issue a summons for just about every document that had ever floated past Ragg’s desk relating to Corcoris. That’s a lot of documents, as the investigation against him was a massive joint ATO/AFP investigation dating back to 2002 called Operation Tarpan. So, Ragg asked a magistrate to strike out the summons as an abuse of process. After the magistrate said no, Ragg went to the Supreme Court for judicial review. That’s this case.
On 24th January 2008, Bell J ruled (in passing) that the Charter didn’t apply:
 This judicial review application was issued by Mr Ragg on 21 December 2007 before the commencement of the relevant provisions of the Charter of Human Rights and Responsibilities Act 2006, which was 1 January 2008. By the transitional provisions in s 49(2), the Charter “does not affect” the proceeding.
Did he apply s. 49(2) correctly? Nope. Continue reading
Justice Bongiorno’s judgment in Gray v DPP  VSC 4 makes history as the first time the Charter has been applied by a court; it is also the first time that a defendant has gotten a remedy for a breach of the Charter. But did Bongiorono J apply the Charter correctly?
The lucky Victorian beneficiary of these firsts is Echuca’s Kelly Gray, apparently a prospective member of the Bandidos. On 4th November 2007, someone beat-up Swan Hill’s Carl Slee with a baseball bat. Slee says that the batsman identified himself as Gray; Slee and another witness also picked Gray out of a photoboard and Gray has a ‘Prospect’ jacket just like the bat guy. Gray was arrested and charged a month later after refusing to cooperate with the Swan Hill police. This case isn’t about whether Gray bashed Slee, but rather about whether he should stay in custody while the courts sort that out. That bail question has a human rights dimension because it seems that Gray’s trial (in Mildura) probably won’t't happen until the end of 2008 (and, also, the prosecutor couldn’t give the Court any clear information about that.) According to Bongiorno J, it was possible that Gray would spend more time waiting for his trial then he would spend in prison if he was found guilty.
Gray was initially refused bail in the Kerang Magistrates’ Court on 10th December 2007. This case involved his second attempt to get bail, before the Supreme Court a month later. That put him on the right side of the Charter’s full commencement date, so Bongiorno J could apply the Charter, which he did:
 That a person may serve more time on remand than his ultimate sentence is a significant matter on any consideration of bail at common law. It is of even greater significance now in light of the existence of the Charter and the provisions to which I have referred. If the Charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail. It would be difficult to argue that a trial which may well be not held until after the applicant had spent more time in Custody than he is likely to serve upon a sentence would be a trial held within a reasonable time. The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail – at least the only remedy short of a permanent stay of proceedings.
So, is this right? Let’s break it down. Continue reading
Two recent Victorian police actions seem to cry out for Charter analysis. One is the use of capscicum spray at the Australian Open, which arguably is an unjustified breach of the rights of (at least) the uninvolved spectators to not be treated in a degrading way and to security. The question of remedies (especially damages) is much less clear.
The other action that sparked my Charter interest is the arrest of everyone’s favourite teenage party animal on, of all things, producing child pornography. This is only interesting if the ‘child pornography’ is – as some suspect – mobile phone footage of consensual conduct with a person who is just under 16 (or appears to be) with the knowledge of all involved, i.e. a technical and trivial instance of child porn. If that’s the case, then the arrest reeks of ulterior motives, e.g. vengeance or stopping the lad from doing the media rounds, motives that arguably make his arrest arbitrary. There’s also an argument that criminalising harmless aspects of teenage sexuality (if that’s what this was) is a breach of freedom of expression, though that’s not a claim that is likely to go down well with the Victorian public!
Today brings a media report of potentially the first actual use of the Charter in a court case. Predictably, it’s a pre-trial criminal matter. Justice Bongionorno supposedly granted bail to an assault defendant as a ’remedy’ for the Crown’s (alleged) failure to respect the defendant’s Charter guarantee that he ‘be tried without unreasonable delay’.
I’m not sure that bail falls within the narrow Charter provision on remedies. I’m also not sure whether granting bail is an administrative function, which is what it has to be for a court to be bound by the conduct mandate. But it is clear that the Charter’s interpretation mandate would apply to the provision of the Bail Act 1977 (Vic) that governs what a court must consider in determining whether or not some is an unacceptable flight risk:
4 (3) In assessing in relation to any event mentioned in subsection (2)(d)(i) whether the circumstances constitute an unacceptable risk the court shall have regard to all matters appearing to be relevant
Clearly, this can – and therefore must – be read as requiring the court to regard an ongoing Charter breach as a relevant matter to consider in favour of granting bail. That being said, I’m also pretty sure that delay or potential delay has always been a relevant consideration.
Not that the media ever reports legal subtleties accurately.
[EDIT: The judgment is now online. It contains no discussion of these subtleties either.]
Some revellers may have already received an interesting lesson about how the Charter operates.
Two months ago, parliament proposed a law allowing police in designated areas to ban suspected violent people from those areas for up to 24 hours.. The bill said that those areas (to be designated by the director of liquor licensing, in consultation with the police commissioner) must contain a licensed venue that’s been affected by alcohol-fueled violence. But, as the Parliament’s scrutiny committee noticed, the areas could be as big as the director wanted. Parliament passed the law and the areas were soon designated, including the entire Melbourne CBD & surrounding precincts (by virtue of Queen St’s and the casino’s troubled nightclubs.)
I wonder if there was a difference between the police’s exercise of their new banning powers before the fireworks and after?
Last night’s firework display marked the moment when the Charter of Human Rights and Responsibilities Act 2006 (Vic) (a.k.a. the Charter) became fully operational. Most of the Charter commenced with last year’s fireworks, but the commencement of Divisions 3 and 4 was delayed for a year, supposedly to allow courts and public authorities to ready themselves.
These two divisions contain two new year’s resolutions that the Victorian parliament has made on behalf of the other branches of the government:
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.
Divisions 3 and 4 also contain two provisions about what happens if these resolutions can’t be or weren’t followed:
36 (2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.
39 (1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
A lot of this blog will be about these four provisions, which I refer to as the interpretation mandate, the conduct mandate, the declaration power and the remedies power. (Better shorthand name suggestions appreciated!)