The new parliamentary dialogue

Today’s Alert Digest from SARC (whom I advise, but that’s it) has two interesting instances of the new sort of dialogue that the Charter has caused.

One  is a second instance of SARC reporting that a statement of compatibility overstated the rights issues raised by a bill. In this case, like last time, the disagreement concerns the Charter’s right to freedom of movement (which, unlike freedom of expression, has no qualifications for other laws or the public interest):

12. Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.  

The statement of compatibility to a bill that overrides Melbourne City Council’s attempts to evict an international flower show from Carlton Gardens thus not only described the potential for the flower show to limit Victorians’ freedom of movement (i.e. in and out of the gardens in the month when the show is on) but ran through a full Charter s. 7(2) analysis about how such a limit is compatible with our free and democratic society. Oy. On some views, a similar analysis is needed every time a traffic light turns red. I think that such analyses trivialise the Charter

Let the dead speak

There is a heartbreaking but also heartening story in today’s Age about the family of 70-year-old Marea Yann, who was bashed to death in 2003. A jury recently acquitted her son-in-law of the murder, despite evidence that he had allegedly confessed to the killing and a claimed motive concerning a dispute with his wife / her daughter. What is heartening is that the victims have responded with a quite sensible call: for reform to Victoria’s evidence law to permit the victim’s voice to be heard. Not, mind you, via a ouija board, but rather through exceptions to the hearsay rule. In Victoria, such exceptions are on the way in the form of a bill enacting Australia’s uniform evidence legislation, which notably liberalises the hearsay rule  with exceptions in criminal cases for when the speaker is ‘unavailable’, for example because he or she is dead:

65 Exception: criminal proceedings if maker not available

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:…

(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) made in circumstances that make it highly probable that the representation is reliable…

Andrew Palmer and I were both quoted in the article as noting that the new exceptions (notably 65(2)(b)) would seem to cover at least one of the pieces of evidence rejected in the trial, where the victim received a phone call and then told someone that it was her son, threatening to kill her.

But there’s a need for caution, too.

The dreaded passing mention

So far, there’s been only one Victorian case that actually analysed the Charter. All the others simply referred to the new Act in passing, e.g. observing (in a discussion that raises question of privacy) that ‘The right to privacy is now provided for in the Charter of Human Rights and Responsibilities Act 2006′ or simply footnoting a section of the Charter that corresponds to some legal right mentioned in a judgment. Such passing mentions to the Human Rights Act 2004 have been similarly common in the ACT.

These passing mentions might seem innocuous or even evidence of some sort of cultural change in our courts.  But I think they are bad law, akin to the famous argument that the Constitution has a vibe, and even dangerous. Yes, dangerous.

As this blog has noted several times, some passing mentions merely dismiss the relevance of the Charter, but do so without a careful reading of its potentially more nuanced and relevant terms. However, most passing mentions seem to indicate that the Charter is somehow relevant. The tenor seems to be that the simple passage of the Charter has transformed Victorian law by ‘giving’ rights to Victorians, a view that completely ignores the limited operational provisions of the Act. Only King J in R v Williams has actually analysed the legal effect of the Charter. She noticed that s6(2)(b)  – which refers to courts and tribunals having ‘functions under Part 2′, the human rights part – could be read as giving rights legal effect in our courts (but what effect? what functions?) independently of the interpretation and conduct mandates; however, she also observed that she was ‘not convinced that is what Parliament intended.’ You bet it wasn’t. Consider Bongiorno J, who was content to observe twice last year that one provision or another was ‘probably contrary to the spirit, if not the letter’ of the Charter and this year applied the Charter without any analysis as if it gave a remedy to every breach of a right. The operative provisions of the Charter, for better or worse, strike a balance between competing political considerations. Such undergraduate references to  the Charter are not only bad law, but also threaten that balance. And there’s another consequence.

Another road not taken

The Charter got a passing mention in a tricky case about property valuation. In 1988, Halwood Corporation bought some land in Berwick that it knew was subject to a reservation for acquisition by VicRoads. The previous owner hadn’t sought compensation for the impact of the reservation on the value of the land and Halwood tried and failed to get the same compensation. In 2006, VicRoads finally acquired the land (probably for this project) and Halwood again sought compensation. This time, the issue was whether or not the land (and compensation) should have been valued without regard to the original reservation (which greatly reduced the value of the land, something Halwood pointedly demonstrated when it tried and failed to get the land subdivided.) Quite a tricky issue! Should Halwood get compensated for a ‘loss’ it already knew about when it bought the land (presumably for that very reason?) Or should VicRoads get the lost value of the land ‘for free’ just because the original owner sold rather than making a claim?

The case came down to interpreting the Land Acquisition and Compensation Act 1986. VicRoads argued that the Act didn’t have to ‘be interpreted to provide compensation on just terms’. Justice Osborn accepted that, noting in passing – something I’ll have more to say on in a future post! – that:

it is apparent s.20 of the Charter of Human Rights and Responsibilities Act 2006 did not provide for or recognise a right to just compensation upon the compulsory acquisition of land.

I say: not so fast.

Victoria’s luckiest murder defendant?

Troy Grant Wells has just got bail after trying for over twelve months.  He was charged with murdering his six-week old son, although he says he just accidentally dropped little Joshua. This was his third attempt at bail, so  my initial assumption was that Wells had got the benefit of the current dubious jurisprudence on bail under the Charter. That’s because Wells struck it extremely lucky in terms of the Charter’s   absurd transitional provisions.

A very soft Underbelly

The wives and wowsers will be thrilled. Victorians almost certainly won’t be seeing Nine’s docudrama on the gangland wars anytime soon, thanks to a ruling by Justice King banning the broadcast (on TV and on ‘Victorian’ internet sites) until after the trial of an unnamed person in relation to one of the murders. Assuming King J didn’t follow a controversial approach to the Charter that she raised in another gangland trial over a year ago, this couldn’t be a Charter case, both because of the transitional provisions and the exemption of courts’ non-’administrative functions’ from the conduct mandate.

But if it had been a Charter case, then it wouldn’t have been about “a responsibility to weigh up the interests of the community and commercial interests of Nine”,

A High Court interpretation mandate?

Today’s High Court judgment in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 differs from the usual trend of the High Court refusing to apply Kable. Typically, the Court has been willing to endorse just about any state legislation as compatible with the Kable principle. But, today, the Court found a different way to avoid laying the Kable: adopting a strained interpretation of a statutory provision. It’s as if the Court was bound by the Charter’s interpretation mandate….

SARC criticises a constitutional amendment

The Victorian Parliament’s Scrutiny of Acts and Regulations Committee (whom I advise, but whose views aren’t mine and vice versa) has this to say about a current bill to amend the Victorian Constitution (and some other legislation) in relation to pensions of various judges and other constitutional officers:

The Committee considers that para. (a)(ii) of the definition of partner in clauses 3 and 9 may be incompatible with Charter s. 8(3).

Those are bold words for a bipartisan committee and only the second time such a finding has been made since the Charer commenced. Unlike the first time, there’s no apparent excuse for this discrimination.

Another Gray day

A magistrate has followed Bongiorno J’s poorly reasoned judgment in Gray v DPP. According to The Age:

Melbourne magistrate Peter Reardon yesterday bailed South Australian man Quang Hung Pham after studying the charter and reading Justice Bongiorno’s judgement. Defence barrister Peter Faris, QC, had urged Mr Reardon to find that a possible two-year delay in finalising Pham’s case was unreasonable under the charter.

Pham, 45, is accused by the Australian Crime Commission of being a principal in a drug group and organising two couriers arrested in December at Melbourne airport to internally import a total of 330 grams of heroin from Vietnam. Detective Sergeant Anthony Brain said that after his arrest, while driving to South Australia from Melbourne airport following the couriers’ interception on December 1, police found incriminating items at two Adelaide houses linked to Pham. Prosecutor Andrew Doyle submitted that telephone intercepts linked Pham to the couriers and the importation, the delay was not unreasonable and, if convicted, he faced more than a two-year jail term.

Mr Faris, who argued the delay was unreasonable under the charter, said Pham was not a risk of fleeing Australia if bailed and he denied the charge of importing heroin. Mr Reardon quoted Justice Bongiorno that “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”. Mr Reardon, in granting Pham bail, took into account the charter, his age, ties to Australia and the likely delay. Pham, of Mawson Lakes, South Australia, was released on strict conditions that included a $150,000 surety.

Note that Magistrate Reardon expressly relied on the most dubious sentence in Bongiorno J’s judgment. If this keeps up, the ACC would be better off letting their targets drive over the border before picking them up.

A High Court declaration of inconsistent interpretation?

The Charter gets a mention again in a new case, Ferguson v Walkley [2008] VSC 7, which had to decide whether ‘fuck off you dog cunts’ are ‘insulting words’; saying such things to a person ‘in or near a public place’ is a criminal offence under s. 17(1)(c) of the Summary Offences Act 1966. Interestingly, Harper J dealt with the potential incompatibility of s. 17(1)(c) with the Charter’s right to freedom of expression by reference to the High Court’s decision in Coleman v Power [2004] HCA 39 on a similar provision of the Queensland Vagrancy Act:

By a majority of six (Gleeson CJ and Gummow, Kirby, Hayne, Callinan and Heydon JJ) to one (McHugh J), the High Court held that s.7(1)(d) of the Queensland legislation was valid: it was, so the majority held, reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution. It doubtless follows that the equivalent provision in the Summary Offences Act can, in the words of s.7(2) of the Charter of Human Rights and Responsibilities, “be demonstrably justified in a free and democratic society based on human dignity, equality and freedom … taking into account all relevant factors”.

I’ll put aside the fascinating question of whether or not there is a direct relationship between the High Court’s constitutional freedom of political communication jurisprudence and the Charter’s s. 15(2) & 7(2). Let’s assume there is. What follows for s.17(1)(c) of the Summary Offences Act 1966?

Roos on Charter remedies

A unique feature of the Charter is s39(1), which governs the remedies available for breaches of the conduct mandate:

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.

Elsewhere, I’ve argued that this provision is quite restrictive in a criminal law context, as many familiar criminal law ‘remedies’ are activated by broad problems such as unfairness, factual error, harm or disproportion, rather than illegality.

In his article in the Jan/Feb 2008 LIJ, Oscar Roos lists the following criminal justice remedies as potentially triggered by a breach of the conduct mandate:

• The substantive criminal law defence of unlawfulness (e.g. if someone is charged with resisting arrest, or escaping custody, and argues that the arrest or custody was unlawful)
• Quashing warrants for failure to strictly comply with applicable regulations
• Quashing committals for failure to strictly comply with applicable regulations. (Roos admits that there’s no strong authority for this remedy, but draws an analogy with warrants. I’m dubious about that, and also about whether committals are administrative functions.)
• Evidence law’s public policy discretion
• Stay of proceedings because of unreasonable delay

Ripe for re-interpretation?

The Jan/Feb 2008 LIJ has a great piece by Oscar Roos on the Charter’s possible impact on criminal litigation, featuring specific examples and paying attention to the Charter’s operative provisions. It’d be great to see more articles like this.

Roos lists the following Victorian statutory provisions whose meaning might have changed on 1st January 2008:

• s. 462 of the Crimes Act 1958, which extends the circumstances when a citizen can arrest someone to include ‘the case of a person found doing any act or so behaving or conducting himself or in such circumstances that the person finding him believes on reasonable grounds that the person so found is guilty of an offence’. In De Moor v Davies [1999] VSC 416, Warren J held that ‘such circumstances’ can include being told by others of someone’s highly suspicious conduct (in that case, obtaining money using an EFTPOS card without either the password or ID) even if no-one was sure that what he’d done was criminal.
• s31(5A) of the Sentencing Act 1991, which requires a suspended sentence to be restored if the offender commits another imprisonable offence unless there are ‘exceptional circumstances‘. In R v Steggall [2005] VSCA 278, a man who had committed a number of dishonesty offences received a three year suspended sentence; two-and-a-half years in, he directed some corporations, which is a criminal offence under the Corporations Act for someone with his record; so, a year later, he faced a restoration of his original dishonesty sentence. The Court of Appeal held that ‘exceptional circumstances’ must be ‘outside reasonable anticipation or expectation’, and that mere disproportion or injustice wasn’t enough.
• ss. 4(2)(aa) & 13 of the Bail Act 1977, which require judges to refuse bail to people charged with various drug offences, treason and murder unless there are ‘exceptional circumstances‘. In DPP v Tang [1995] VSC 220, the Supreme Court held that spending six months in custody while awaiting trial couldn’t be an ‘exceptional circumstances’ because it is well within the usual waiting period.

In each case, Roos thinks that, given the Charter’s right to liberty, the interpretative mandate will demand approaches that are more generous to suspects and defendants.

Freedom to finger

A nice little article in December 2007′s LIJ (available free, for now) on why a 2007 ECtHR ruling on the Austrian painting on the left may be good news (now that the Charter is operational) for the Victorian sculpture on the right.

(I’m not so sure about Harper’s claim that careful tree-planting would resolve the conflict between sub-ss (2) & (3) of Charter s.15 that The Finger so pointedly raises.)

Declarations: Anti-matter or just dark matter?

A slight lightening of a constitutional cloud over the Charter (and its Canberra cousin.) The cloud concerns the possibility that the Charter’s declaration power – allowing a court to declare that a Victorian statute is inconsistent with human rights, kickstarting the much vaunted rights dialogue – isn’t a ‘matter’, which means it can’t be part of federal judicial power. (Don’t know what ‘federal judicial power’ is? Well, that’d be my fault, according to High Court Justice Bill Gummow, who thinks that law schools should teach ludicruously complex (and simply ludicruous) constitutional technicalities to all law students, just so he can banter about them with his lucky associates from the get-go.)

So, whassamatter? In 1921, the Commonwealth Parliament, sick of trying to guess in advance how the High Court will interpret the Constitution, told the Court to rule on the constitutionality of legislation before anyone applied it. The horrified Court frantically leafed through the Constitution and noticed this legalese buried in Chapter 3:

76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter– (i.) Arising under this Constitution, or involving its interpretation: (ii.) Arising under any laws made by the Parliament: (iii.) Of Admiralty and maritime jurisdiction: (iv.) Relating to the same subject-matter claimed under the laws of different States.

The judges seized on the word ‘matter’ and held that it meant that the Court was forbidden on ruling on things that didn’t legally matter. Otherwise,the delicate separation of powers will collapse (just like in Canada, where its Supreme Court routinely gives advisory opinions and wild dogs roam the streets.)

Why does this matter?