The almost cool Charter

While on the subject of the Charter’s  full name, one flaw is that it doesn’t yield a good acronym. CHRR? CHRAR? COHRAR? It just doesn’t work in the way that ACTHRA and NZBORA  do.

But it might have. Section 6 of the Charter provides that:

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

And the Charter’s definition section defines a person to mean ‘a human being‘.

So, it could have been the Charter of Human Beings’ Rights and Responsibilities, or COHBRAR for short. Now, that might have been cool.

The Charter of Responsibilities

Victoria’s human rights law is unique in a number of respects. One of the less desirable ones is its full title: the Charter of Human Rights and Responsibilities. This name is one of the many instances where the Community Consultative Committee, after traveling all over Victoria, decided that the community wanted precisely the same name that Rob Hulls had suggested in his 2004 ‘justice statement‘. Hulls certainly has his finger on the pulse! As the Committee unconvincingly explained:

The Committee considers that ‘Charter’ is appealing as it attests to the symbolic as well as the legal significance of the document. The Committee also decided to include a reference to ‘responsibilities’ in recognition of the views expressed by many people that rights and responsibilities go hand in hand.

The Victorian name wasn’t a big hit with two later human rights consultations, in Tasmania and WA, both of which endorsed my intemperate submission on the name:

Victoria’s Charter of Human Rights and Responsibilities would have to be the most depressingly named fundamental rights document in history. The reference to responsibilities has a disturbingly Orwellian ring and is misleading, given the limited legal effect of Victoria’s Charter. I implore you not to follow this lousy precedent. 

Aesthetics aside, the silly thing about referring to ‘responsibilities’ is that it’s not at all clear what responsibilities the Charter sets out, much less how they go ‘hand in hand’ with the rights the Charter promotes. One of the few times the word ‘responsibilities’ even appears in the Charter is in the right to freedom of expression:

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.

So, how do responsibilities play out in the Underbelly judgment? The answer is that the media had all the responsibilities:

Crikey on Underbelly

This isn’t strictly a Charter post, but, given my posts here on Underbelly, I thought I’d include my piece in Crikey on the merits of the Underbelly judgment (and the media’s schadenfreude about Nine’s predicament) after the fold.

The Court of Appeal’s human rights culture

Yesterday’s Underbelly judgment‘s passing mention of the Charter marks the lowest point in the new statute’s impact to date. The seemingly innocuous words are these:

[W]e observe that even if it was open to the applicant to rely upon the Charter in terms of the right of free speech… then we would adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:

The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.

To recognise these words for the debacle that they are, it’s vital to understand that the New Zealand Court of Appeal’s Gisborne Herald decision represents one side in a major split between the world’s human rights jurisdictions. Crucially, the other side is the Supreme Court of Canada’s Dagenais v Canadian Broadcasting Corporation, which involved a court’s ban on the broadcast of a docudrama immediately before and during a related criminal trial. Sound familiar?

Unlike the Victorian Court of Appeal, a 6-3 majority of the Supreme Court of Canada quashed the ban, holding that it infringed the free speech rights of myriad Canadians and did so unnecessarily, given the availability of alternative remedies like jury vetting, sequestering, adjournments and judicial directions. But that isn’t the most important thing about the decision. Rather, the Supreme Court also held that the common law on contempt – the very same law that was applied yesterday in Victoria – was itself incompatible with the Canadian Charter. It wasn’t enough that the docudrama had a ‘tendency’ to prejudice a trial. Rather, fair trial concerns could only be a reasonable limit on freedom of the press and expression if two conditions were satisfied. First, that a ban is ‘necessary’ to preserve a fair trial. Second, that the positive effects of the ban outweigh its negative effects. Although the Court held that the ban failed the first step, it also commented very perceptively – for a 1994 judgment! – that the ‘advent of information exchanges available through computer networks’ makes it difficult for any ban on broadcasting to satisfy the second step.

So, how does the Underbelly’s passing mention relate to this? Well, Gisborne Herald was decided by the New Zealand Court of Appeal in 1995 and the Court expressly considered whether Dagenais should be adopted in light of that country’s Bill of Rights Act. The Court of Appeal decided to stick with the status quo, citing the absence of empirical data on either the positive or negative effects of a ban. The decision was lauded by one of the texts on the NZBORA as an appropriate prophylatic approach to promoting fair trials, but criticised by the other as inevitably chilling press coverage of trials.

I think Dagenais is a much sounder approach than Gisborne, but that isn’t my beef with what the Court of Appeal did here. 

Does the media have rights?

Today’s decision mostly confirming the ban on Underbelly in Victoria inevitably includes a passing reference to the Charter:

Ground 4. The learned trial judge erred in failing to have regard to ss 7 and 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This ground was abandoned on the second day of the hearing before us. However we observe that even if it was open to the applicant to rely upon the Charter in terms of the right of free speech, which we consider to be highly unlikely, then we would adopt the view of Richardson J in Gisborne Herald Co Ltd v Solicitor-General:

The present rule is that, where on the conventional analysis freedom of expression and fair trial rights cannot be fully assured, it is appropriate in our free and democratic society to temporarily curtail freedom of media expression so as to guarantee a fair trial.

Like other passing mentions before it, these comments are all about vibe, not analysis.

I’ll focus in this post on the remark that it is ‘highly unlikely’ that ‘the applicant’ can ‘rely on the Charter in terms of the right of free speech’. As previously discussed in this blog, Charter s. 49(2) seems to preclude the Charter’s application in this case; the relevant proceedings, the murder prosecution, started before 1/1/7. So, neither Channel 9 nor the murder defendant himself can rely on Charter rights.

But, I don’t think the Court was referring to s. 49(2) when it used the terms ‘applicant’ and ‘rely’. Rather, I suspect that the Court was referring to Charter s. 6(1), which provides that ‘Only persons have human rights’. The Charter defines a ‘person’ as a ‘human being’. So, Channel 9 and its corporate owner don’t have human rights. Charter s. 6(1) was specifically included to prevent a repeat in Australia of a much-hated Canadian decision that overturned that country’s tobacco advertising laws. For what it’s worth, I think that the Canadian case was rightly decided, as the Canadian government made no serious attempt to justify the laws in question; when they did, after passing narrower laws that allowed the tobacco companies to attribute health warnings to the government, the Supreme Court upheld those laws. Nevertheless, the view that corporations shouldn’t have rights is a fairly mainstream one.

The Underbelly judgment, in my view, shows why the exclusion of corporations in general (and corporate speech in particular) from the Charter is problematic.

Spot-checking the new Charter books

While the flow of cases since the Charter has been fully operational has been a disappointment (in several ways), Victoria is now the beneficiary of three books on the statute, by a total of three academics, three barristers and three Evanses (who somehow acquired the same surname otherwise than by marrying eachother.) I ordered all three last week and will presumably receive them sometime after Easter.

But  reviewing them is a problem, because I have a clearly apparent bias towards the book by Carolyn Evans and Simon Evans, who are not only fellow academics but also my colleagues at Melbourne Law School. Indeed, Simon is my boss. Also, I read a draft of one of the chapers (on parliamentary process) and will presumably be in the acknowledgments (or maybe I’ll be biased a diferent way!) I’ll do my best to be objective when the time comes, but here’s my solution:

When I need to choose between competing law books at a bookshop, I typically ‘spot check’, by looking to see how each handles an issue I know about. So, here are two lists of spot-checking issues I’ll use to assess all three books: one for rights; and one for operative provisions.

The Charter v The Commonwealth

On top of his concerns about the Charter’s transitional and notice provisions, Bongiorno J gave one last reason for staying clear of the Charter in today’s ruling about remand conditions for terrorism defendants:

any attempt to apply the Charter to a trial in federal jurisdiction, as this trial is, may well raise questions which require the issue of notices to all State Attorneys-General and the Federal Attorney-General pursuant to s 78B of the Judiciary Act 1903 (C’th) – another source of potential delay to the trial.  

Justice Bongiorno’s procedural concern here can’t be about the immediate question of remand provisions because, as the judge himself noted when discussing Charter s. 35(1)(a), there’s an exception in s78B for ‘the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.’ Rather, the concern will have to be about further legal delays down the track.

But the mystery is what ‘matter arising under the Constitution or involving its interpretation’ that Bongiorno J had in mind.

A new problem Charter section?

Justice Bongiorno’s discussion of the Charter in the course of his ruling about remand conditions in Melbourne’s terrorism trial didn’t just involve its transitional provisions. Indeed, the judge nominated an alternative provision as highly problematic:

[A]ny attempt at reliance on the Charter would necessarily require compliance with s 35(1)(a), which concerns the giving of notice to the Attorney-General and the Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter. Compliance with this provision would, of necessity, involve delay – perhaps considerable delay – which in the context of an application such as this would be at least inconvenient and perhaps even intolerable.

Section 35 of the Charter contains no severance provision, nor does it contain any urgency exception such as are found in s 78B of the Judiciary Act 1903 (C’th). These are major impediments to the smooth operation of the Charter which need the urgent attention of the Legislature. The section needs to preserve a residual discretion in the judge to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason. This is, for obvious reasons, particularly important in criminal proceedings. Without such a power there is a real danger that the notice provisions of the Charter will be used to delay or even disrupt the orderly conduct of criminal trials.

Wow! Is the Charter unworkable? Well, only if you read Charter s.35 in a quite bizarre way.

The Charter’s War on the War on Terror

Today brings the stunning – if not exactly surprising – news that Melbourne’s vast terrorism trial is starting to unravel. Justice Bongiorno – not a favourite on this blog – has ruled that he will order a (non-permanent) stay of the trial and hear bail applications unless the defendants’ harsh remand conditions – long journeys, shackles, strips searches and the usual GITMO trappings in Barwon – are replaced with normal remand conditions at the Melbourne Assessment Prison in Spencer Street.

The reason for the ruling is that the present conditions leave the defendants too exhausted and unbalanced to concentrate on the complexities of the trial. Such an argument naturally brings two Charter provisions to mind:

22 (1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.

(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.

25 (2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-…

(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her…

But, as anyone who has read this blog would realise, there’s a major barrier to applying the Charter to this trial: the Charter’s stupidest section, s. 49(2). Fortunately, that section was both considered and even (vaguely) analysed in the ruling.

Justice Bongiorno observed:

it was only barely arguable that the Charter would apply of its own force to this case having regard to the transitional provision contained in s 49(2). Unless a somewhat strained meaning was attributed to the word “proceeding” this proceeding, of which the accuseds’ trial is a part, commenced well before the commencement of Part 2 of the Charter – possibly more than a year before. The accused were originally arraigned on 18 December 2006. Even if the indictment filed that day was subsequently amended and eventually replaced by another version which was “filed over,” as the common Victorian expression has it, the accuseds’ trial actually commenced in December 2006…

Breaking this down:

The price of the Charter

The Charter isn’t just a piece of legislation. It’s also a literary work. At least, that’s the view of the crazy world of copyright law (and prerogative law), which also takes the view that all works – including legislation – made under the direction or control of the Crown is owned by the Crown. So, the Charter isn’t owned by George Williams or Andrew Gaze or the rest.

Anyone who wants to ‘copy’ the Charter needs permission from the relevant Crown, in this case Victoria. There is a statutory defence for the provision of single copies to a ‘person’ for a ‘particular purpose’, but only where any charge is limited to cost recovery. There are also traditional – albeit very murky – defences like fair dealing. It doesn’t matter that the Victorian government – and Austlii – give the thing away for free. If you want to do the same, you need a licence.

So, for someone like me, who is co-authoring a book on human rights that will be charged at more than a cost-recovery basis (although not much more), I knew I had to ask the Crown (or risk the book getting pulped.) In this case, I was told, there would be a fee, which depended on the amount of the legislation extracted, the number of copies of the book and the expected price. After I told them that I thought the book would quote the whole Charter – a rather short document – at one point or another and supplying the (commercially confidential) guesswork about sales, they came back to me with a quote. The cost would be $7,335. No, that’s not a typo.

On my calculations, that’s a charge of over $1 per word!

An outcome for the new parliamentary dialogue

Charter-inspired parliamentary dialogue has been going on for over a year now. As many have pointed out, such dialogue is subject to many of the limitations that apply to regular parliamentary debate: party politics, lack of legal knowledge in rights, parliamentary incapacity to assess the effects of the bills they pass and the difficulty of making complex amendments on the floor of the house. However, those limitations do not prevent the dialogue from having an impact.

Last sitting saw the passage, at last, of the Criminal Procedure Legislation Amendment Bill 2007, which (amongst a host of smaller changes) introduced (or regularised) a sentence indication scheme for Victoria’s courts. As previously blogged here, that Bill was the subject of a rare multi-stage dialogue between the Minister and SARC. The outcome of that discussion emerged this week in two stages.

The police’s rights-friendly view of self-incrimination

It’s not just the Police Association who has been gripped by a human rights culture. The Police Minister is a convert too, arguing in public for a much more expansive view of the right against self-incrimination than has ever been accepted in Australian law.

Last year, SARC (who I advise) raised some concerns about a bill that required police officers in some circumstances to submit to drug and alcohol testing. SARC was concerned about a provision that provided that the results of such testing would be kept secret and also would be inadmissible in criminal proceedings. It cited the High Court case of Wakely & Bartling v R, which held that in some circumstances evidence about drug use by police officers can be relevant in trials for charges that those officers investigated.

The Police Minister, Bob Cameron, responded to SARC  by arguing that the testing was a welfare-based policy, that the results would typically be irrelevant in criminal trials and that there were at least some circumstances (notably where somone died) that the results could be adduced. Interestingly, the Minister concluded:

Making test results generally available would also risk the privilege of police officers against self-incrimination, a privilege that extends to all members of the community. 

That’s an interesting view, because the High Court of Australia has long held that the privilege against self-incrimination doesn’t extend to real evidence, even evidence inside your own body. It’s not you that’s incriminating you; it’s your body!

The Minister, obviously enthused by the internationalisation of Victorian law that is promoted by the Charter, has apparently come around to the view of the Supreme Court of Canada and the European Court of Human Rights that compelled gathering of bodily evidence can breach the privilege against self-incrimination in some circumstances

Do police have rights?

Victorian police will soon be told to register any ‘inappropriate relationships’ they have with criminals, a move designed to stop them from being targeted or seduced by organised crime syndicates. Needless to say, the police’s union is unimpressed:

[T]he Police Association says it fears the register will be an intelligence-gathering tool for the Ethical Standards Department. The union has written to Deputy Commissioner Kieran Walshe to protest, saying that the move would probably be shunned by police. “Among the concerns was the probable lack of member acceptance on what will be a major intrusion,” the letter said. It hinted at possible legal action, saying the association believed the policy violated Victoria’s human rights laws. 

Human rights laws? Good to see that the human rights culture has taken grip where it’s most needed.

So, what human rights are at issue? 

A judge who’s actually read the Charter

Genco Guneser is clearly one of the few Victorians who’s heard that Victoria has a rights Charter. Litigating in person in the Supreme Court in an attempt to get criminal charges relating to an altercation with his taxi passengers dropped, he apparently relied repeatedly on his Part Two rights. It’s hard not to see their relevance to his complaints. He says that:

• the passengers he assaulted called him ‘a dirty Arab’
• his trial (for charges first laid in 2003) is unduly delayed (in large part, it seems, because of the unavailability of the prosecution’s chief witness)
• the police failed to give him evidence relevant to his defence (including bank statements that might back up his claim that the passengers were faking their claim that an ATM wasn’t working and a forensic report that cast a lot of doubt on the claim that he struck a female passenger with a torch)
• his magistrate didn’t give him a fair chance to elect to have charges heard summarily
• the prosecution improperly added a new charge of causing serious injury to stop his case from being heard summarily
• his magistrate is biased against him
• his magistrate didn’t appropriately adjourn his hearing to allow him to seek a new lawyer
• his magistrate appointed a friend of the court to make arguments on his behalf that he didn’t agree with

Alas, for Guneser, he was before a judge who had actually read the whole Charter and knew that it doesn’t provide a remedy for every breach of a right. So, Guneser v Magistrates’ Court of Victoria is a long-awaited good judgment on the Charter.

The Crown, responding to Guneser’s application for judicial review of various actions by the magistrate, relied on  s. 49(2), the  Charter’s improvidently conceived and ambiguously drafted transitional provision for ‘proceedings’. He cited the Williams judgment to argue that s49(2) applied, as Guneser was charged before (well before) the magic cut-off date of 1/1/7.  However, Williams didn’t involve a ‘judicial review’ application and the judge would have to decide, for the first time, whether such an application is a separate proceedings for the purpose of s49(2) (meaning that it wouldn’t be exempted, as it was commenced after his committal early last year) or whether it is bundled with the underlying criminal proceedings (meaning they are exempted from the Charter, as they commenced years before 2007.) As it happens, I think the latter is the correct reading, although there’s still more issues to be argued.

Fortunately, though, Habersberger J turned his attention to a much more relevant transitional provision:

49(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.

This provision relies on a different cut-off: 1st January 2008. Justice Habersberger correctly noted that Guneser’s complaints were all about various acts by public authorities, including the a police officer, the OPP and – for at least some its actions – the Magistrates Court of Victoria. Having identified these acts, the judge observed:

all of the acts or decisions made by public authorities which Mr Guneser wishes to attack in this proceeding were made before 1 January 2008. Thus, in my opinion, he has no right to seek any relief or remedy in respect of those acts or decisions under s.39 of the Charter. 

This pertinent observation stands in stark contrast to Bongiorno J’s complete failure to refer to this provision in basically identical circumstances in the Gray case and Bell J’s inability to get the relevant dates right in the Ragg case. Hopefully, future judgments will take heed of this one.

That being said, I have some quibbles.

It’s everyone’s conduct mandate

The new ACT human rights amendments have one last surprise. While its conduct mandate covers the usual suspects – i.e. public authorities, such as Ministers, public servants, government entities and anyone who does a ‘public function’ on behalf of the Territory – and omits the other usual recalcitrants – courts (sigh) and the parliament itself – it also has a ground-breaking opt-in clause:

40D Other entities may choose to be subject to obligations of public authorities

(1) An entity that is not a public authority under section 40 may ask the Minister, in writing, to declare that the entity is subject to the obligations of a public authority under this part.

(2) On request under subsection (1), the Minister must make the declaration.

(3) The Minister may revoke the declaration only if the entity asks the Minister, in writing, to revoke it.

The purpose of this clause is to allow private entities to join the glorious human rights culture. You might wonder why they’d want to do so, especially as the ACT, like Victoria, churlishly excludes corporations from all the benefits of their human rights statutes. But consider this:

• “Sign up with Optus, the only mobile service provider that’s obliged to respect your human rights”
• “Kingsley’s Chicken: Every drumstick lovingly made in a way that’s compatible with human rights. If not, the ACT courts will give you a remedy!”
• “The Canberra Times: Bringing you the capital’s news, compatibly with your human rights.”
• “ANU Law School: Our teachers know their human rights law. Legally, they have to.”

Notice that ‘must’ in s. 40D? The Minister can’t say no to any such request, nor can she or he strip someone of their ‘conduct mandate’-bound status unless they ask for it.

And there’s more. Check out the definition of ‘entity’:

Canberra leap-frogs Victoria on conduct

The other half of the ACT’s brand new amendments to its Human Rights Act involves the conduct mandate. Until now, the ACT was way behind Victoria, because it had no conduct mandate at all (although some have argued that it kinda did.) From the start of next year, it will have the same basic conduct mandate as Victoria (and the UK.) But there are three very important differences.

First, the ‘other laws’ defence, which ensures that these human rights statutes come second to every other law, is different. In Victoria, the defence applies where another law means that a public authority ‘could not reasonably have acted differently.’ The ACT, by contrast, follows the UK approach. It’s conduct mandate:

does not apply if the act is done or decision made under a law in force in the Territory and—

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

It seems to me that (a) is much narrower than Victoria’s defence, while (b) is potentially wider.

Second, the ACT completely lacks Victoria’s defence for ‘an act or decision of a private nature’. So, the ACT’s Ministers and public servants had better be careful when they’re hanging out in their backyard or shopping at the local Supabarn.

Third, and most importantly, the ACT doesn’t have Victoria’s tortured remedies provision. Instead, the Canberrans again follow the UK, except for damages:

(1) This section applies if a person—

(a) claims that a public authority has acted in contravention of section 40B; and
(b) alleges that the person is or would be a victim of the contravention.

(2) The person may—

(a) start a proceeding in the Supreme Court against the public authority; or
(b) rely on the person’s rights under this Act in other legal proceedings.

(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

Cripes! This surely makes the ACT courts, always by far the most liberal in Australia, also its most powerful (albeit within the small ponds that are the Territory and the conduct mandate.)  Again, these changes have no transitional provisions, so stand by for a wild ride from 1st January 2009.

Canberra catches up with Victoria on interpretation

Yesterday, the ACT Legislative Assembly – the first Australian parliament to enact a human rights statute – passed a major set of amendments to its Act. The first half of the bill is a series of changes to mirror Victoria’s Charter.

The ACT’s current interpretation mandate – differently worded to the Victoria’s – was almost meaningless, as it was expressly ‘subject to’ a provision that required ACT courts to prefer an interpretation that would ‘best achieve the purpose’ of the legislation being interpreted. The new mandate, by contrast, is the same as Victoria’s, in requiring only that the rights compatible interpretation be ‘consistent with’ that purpose. So, ACT courts, like Victorian ones, will now be required, when confronted with two interpretations that are both consistent with a provision’s purpose, to choose the one that is compatible with human rights, even if it doesn’t serve that purpose as well as an incompatible interpretation. In addition, the  ACT has changed its reasonable limits provision to be much closer to Victoria’s (and South Africa’s) by including the same set of criteria to judge reasonableness by. The ACT and Victorian interpretation mandates and reasonable limits provisions  are now so similar that decisions in one jurisdiction on a particular provision will surely be precedents in the other jurisdiction for a similar provision. At least, that’ll be true where the rights involved are sufficiently similar in each case (which they mostly are.)

It’s not all just catch-up. The ACT’s interpretation mandate goes further than Victoria’s in two respects. First, it covers ‘Territory laws’, which include Acts and ‘statutory instruments’. The latter term is somewhat broader than the ‘subordinate instruments’ covered in Victoria, as it extends to non-legislative instruments made under a statute, a formulation that includes things like search warrants. Second, the ACT mandate is sensible not subject to the Victorian Charter’s silly transitional provisions. Indeed, there isn’t even a delayed commencement for the changes to the mandate, in contrast to the Charter’s one year delay. So, it may be that Victorian courts will be following ACT precedents, rather than the reverse.

The human rights case of the decade

Last week, the European Court of Human Rights heard a case challenging the compatibility with human rights of the practice (and law) of retaining the DNA profiles of non-offenders on DNA databases. A webcast of the hearing is now online.

This case, while it involves a quite narrow set of technical issues, is probably the most extreme imaginable clash between human rights and the ‘law and order’ movement. The applicants – an 11 year-old who was DNA sampled after he was charged with armed robbery and whose profile will be forever retained despite his acquittal on those charges months afterward; and an adult who was DNA sampled after he was arrested for harrassing his partner, but whose profile will be forever retained despite her dropping those charged and reconciling with him – argue that the retention breaches their rights to privacy and their right not to be discriminated against (in comparison to people who have never been arrested for anything.) The respondent – the UK, naturally, the world’s leader in DNA databasing – argues that retention doesn’t affect anyone except people who subsequently commit crimes (and, in turn, their future victims) and that there’s nothing wrong with permanently distinguishing between arrestees (how ever temporary) and the rest of us. The UK also, of course, highlights the extraordinary utility of DNA databases as crime-solvers.

My (risibly) short take:

No role for the Charter in Unberbelly case

The ‘Underbelly’ appeal to Victoria’s Court of Appeal is likely to be this year’s most important human rights case, pitting all Victorians’ rights to see an important (and, ahem, damn fine!) docudrama on local TV (rather than going interstate or depending on someone else to breach the order and bring in a video or a bootleg) against the rights of an alleged murderer to a fair trial. In other words, Charter s. 15(2) vs. Charter s. 24(1), mediated by Charter s. 7(2).

Except that the Charter apparently won’t get a look in:

Nine’s lawyer Ron Merkel QC today abandoned a move to use Victoria’s newly created Charter of Human Rights to fight Justice King’s decision on the grounds of free speech. Mr Merkel told the court that after careful consideration of the issue over the weekend he felt it would only draw out the appeal process. 

So, that’s it. No application of the interpretation mandate to the relevant suppression order provisions. No consideration of King J’s own suggestion that courts and tribunals are kinda-sorta bound by the Charter despite being exempted from the definition of public authority. No direct references to relevant overseas decisions on similar rights issues.

The likely culprit, I suspect, is Charter s. 49(2), which excludes the Charter from proceedings started before 1/1/7. As I’ve previously discussed, I think that the best interpretation of ‘proceedings’ is one that bundles criminal proceedings and incidental applications together, so that means that the relevant proceedings in this case is the criminal prosecution of the mysterious alleged murderer, who was presumably charged years back. However, it may just be that Merkel didn’t want to take-on the mystery that is Charter s. 6(2)(b). So, two poorly drafted provisions in the Charter itself block Victoria’s top court from deciding a major human rights case by reference to Victoria’s major human rights statute. How often is this going to happen?