Charter applied again!

It’s a sign of the lacklustre start to the Charter that, on the cusp of its fifth month, its stunning news that the Charter’s actually been applied again. I’m actually late to this news, which was reported in the Herald Sun last week. This is the third time the Charter has been applied. The first time was Bongiorno J’s dodgy bail judgment in the Supreme Court in mid-January. The second was a Magistrates’ Court bail judgment a week later. And the third….. another Magistrates’ Court bail judgment. Here’s the article while I try to calm down:

A HUGE court backlog has seen a man accused of belonging to a Mokbel drug cartel freed on bail. Melbourne Magistrates’ Court heard Zlate Cvetanovski, 41, was unlikely to face trial until well into 2010, more than two years after his arrest by Purana Taskforce detectives. Mr Cvetanovski is accused of being an apprentice amphetamines cook in Tony Mokbel’s drug syndicate and of trafficking a large commercial quantity of methylamphetamine between June 2005 and April 2006. Police allege he was paid $200,000 to help manufacture amphetamines at a secret lab and that he had links to members of the Mokbel family. He is also charged with dealing with $72,175 in cash, alleged to be proceeds of crime. The court heard he was on bail for unrelated matters when arrested on returning from a gambling trip in Sydney last week.

Magistrate Peter Couzens said higher courts and the new Charter of Human Rights made it clear that defendants were entitled to have their cases heard without delay. A check by the prosecution with the County Court — where the case will be heard if Mr Cvetanovski is ordered to stand trial — indicated it would not be listed for at least two years from the time of his arrest. “By anyone’s standards, that type of delay is totally unacceptable,” Mr Couzens said. Defence lawyer Damian Sheales told the court that his own experience of delays at the County Court included a day where there were 19 trials awaiting judges. The magistrate said that had the case against Mr Cvetanovski been overwhelming, he may have denied bail in spite of the delay. But there were no fingerprints tying him to the drug laboratory, and the case relied heavily on the evidence of informers who were themselves drug traffickers, he said. Mr Couzens granted Mr Cvetanovski, of Avondale Heights, $350,000 bail, with conditions. He is due to return to court in July.

The magistrate seems to have applied Charter s. 25(2)(c):

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

…

(c) to be tried without unreasonable delay…

(Again, Charter s.21(5)(b) could scarcely be relied upon, given that Cvetanovski has been on remand for all of one week!)

However, as previously discussed, the mere fact that a defendant has been denied an ‘entitlement’ doesn’t mean that any rights have been breached or that he gets a remedy. Here’s the run-down:

Review: Australian Bills of Rights

Carolyn Evans and Simon Evans are colleagues of mine and, indeed, both hold senior positions in Melbourne Law School. So, trust this review at your peril. That being said, it’s worth mentioning that I find book reviewing to be a bit of a dubious exercise, at least for good books.  The reviews are either synopses – so why not just read the back cover? – or ‘review essays’, which aren’t really reviews at all. If you want to hear me blab about broader issues, then there are 67 other posts you should be reading instead. Surely the only point of reviews is to find out what (if anything, but there’s always something) is wrong with a book (which is not likely to be a topic covered on the back cover.)

So, let’s get the positives out of the way quickly: this book, written by two public law academics who have been studying parliamentary human rights statutes since before the Charter was a twinkle in Hulls’s eye and who’ve written the balance of the good articles on the ACTHRA and the Charter in the last few years, is mandatory reading for anyone who wants to (or has to) seriously engage with these peculiar statutes. In particular, a number of sections of Australian Bills of Rights simply have to be the starting point for all informed discussion in the next few years on the following issues:

• parliamentary scrutiny (most of Chapter 2)
• interpretation mandate (Chapter 3)
• remedies (Chapter 4)
• limitations provision (Chapter 5)

These sections are all notable not only for their rigour and depth, but also the breadth of their treatment of these issues, straying far beyond the text of each provision but not beyond their meaning. And the book’s discussion of the scope of the Acts (Chapter 1) and the relevant foreign law sources (Chapter 6) are certainly handy. Even at just 200 pages (quite small print) when you leave out the appendices, it’s easily worth the $95.

That’s enough praise, I think. Time for some criticism, starting with the front cover.

Albrechtsen’s bodgy column

It looks like the Australian isn’t going to publish a letter to the editor I wrote in relation to Janet Albrechtsen’s recent column (‘Beware the Galloping Imperialist Judiciary‘) opposing a federal charter. Here’s what I wrote:

Janet Albrechtsen (23/4) repeats a common claim of the anti-charter-of-rights movement: that Canada’s provision allowing governments to override that nation’s Charter of Rights ‘has never been used, not once since the charter was introduced more than 20 years ago.’ She needs to obtain a better pamphlet. Override clauses were applied to hundreds of Quebec statutes in the 1980s, including twelve overrides by the Charter-friendly Liberal government, as well as by the governments of Saskatchewan, Alberta and Yukon Territory, on subjects ranging from language to education, agriculture and gay marriage.

You have to wonder why opponents of a charter need to make up claims about other countries and, for that matter, why the predicted judicial dictatorship is yet to emerge in the ACT (in its fourth year of its Human Rights Act) and in Victoria (in the fourth fully operational month of its Charter.)

I’ve heard this claim about Canada’s ‘notwithstanding clause’ (which is similar to the Charter’ s override provision) before. It seems to be a misunderstanding of one of two much narrower claims: that Canada’s federal parliament has never used the clause; and that the clause has never been used in response to a court judgment. Also, these facts – and Albrechtsen’s false claim, for that matter – are not necessarily evidence of a judicial monologue; they may also be evidence of the courts deferring (rightly or wrongly) to the legislature.

To improve my chances of publication, I didn’t go into another wrong claim in Albrechtsen’s column:

The real stealth bomb in a charter of rights is the interpretation clause. Hang in there if it all sounds a bit dry. Charter advocates will hope you start tuning out right about now. Section 3 of the British Human Rights Act – more or less repeated in the Victorian Charter – says that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.” This is an open invitation to judges to ignore even the clearest of parliament’s intent. The House of Lords has said so, describing this innocuous little “reading down” provision as “dangerously seductive”, and “unusual and far-reaching in character”.

She’s right about Britain, but wrong about the Charter. That ‘more or less’  hides a crucial difference between s. 3 of the UK HRA and Charter s. 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.

Now, that omission’s gotta be deliberate!

The conclusion of my letter shouldn’t be taken as meaning that I back a federal Charter (or Victoria’s for that matter.) I just don’t think much of the ‘judicial dictatorship’ argument.

The right to smell

Last Friday, the Supreme Court of Canada brought down two long-anticipated decisions on the constitutionality of using drug detection dogs (sniffer dogs) to find concealed drugs: one at a bus station, the other at a high school. Before I get to those decisions, it’s worth looking at how this issue is handled in Australia’s (pre-Charter) law, if only for its amusement value.

Seven years ago, the NSW police were doing an ‘operation’ on Sydney’s Oxford Street. Apparently, part of this involved hanging around in plain clothes around outside the NV Nightclub at 2AM in the morning, where a line of people were waiting to get in. Accompanying these cops was Rocky, a trained sniffer dog, who supposedly did what comes naturally to such dogs:

Rocky picked up a scent and led Senior Constable Richardson towards the source of such scent, namely the defendant. When Rocky reached the defendant he put his nose on the defendant’s pocket. Senior Constable Richardson then identified himself to the defendant, who nonetheless did not come to a halt but walked away. As he did so Rocky walked with him, indicating to Senior Constable Richardson the source of the scent that he had detected by placing his nose on the defendant’s pocket. The defendant became agitated. He stopped walking. Rocky stopped too and again put his nose on the defendant’s pocket. This occurred on a number of occasions in the course of which the defendant kept pushing Rocky’s head away from his pocket. Senior Constable Richardson then observed the defendant put his hands in his pocket and remove some plastic bags. At about that time Sergeant Gentle, who was then accompanied by Constable Schmidt, also asked the defendant to halt. The defendant did so and it would appear that a search of his person was then made by Sergeant Gentle or Constable Schmidt.

This nuanced bit of street policing wasn’t too fun for Glen Darby. The search of his ‘person’ revealed some dope and speed. However, things started looking up for him when he drew a Magistrate – NSW Deputy Chief Magistrate Mary Jerram – who not only found that the dog had ‘searched’ Darby, but also that the search was illegal (because the cops – as opposed to Rocky – didn’t reasonably suspect that Darby was carrying drugs before Rocky started nosing around – apparently being in a line to enter a nightclub on Oxford Street doesn’t count) and – in an exceedingly rare event – excluding the evidence against Darby from the courtroom. She even quoted the ICCPR are in the process. Nice to see that these things aren’t career suicide.

Alas, all of these decisions were appellable and in fact were overturned by the more straight-laced Justice O’Keefe. He said that he would have done the usual Australian judicial thing in relation to the question of excluding the evidence: letting it in on the grounds that the police didn’t kill anyone and Darby is a nasty moustache-twirling villain. But, as well, he held that Jerram was wrong to find that Darby was searched (that is, before the police searched him.) Sniffing, O’Keefe held, isn’t a search, because it doesn’t involve touching anyone. Basically, Rocky just searched the air surrounding Darby. So, the NSW Parliament’s panicked response to the original decision – hurriedly passing a new law authorising the use of sniffer dogs – wasn’t necessary. 

O’Keefe’s decision shows the limits of Australia’s common law when it comes to protecting people to privacy.

Transition pains

I’m a big critic of Charter s. 49(2), the Charter’s main transitional provision:

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

My main gripe is that I think this provision is far broader than is necessary and as subtle as the sledgehammer-to-crack-a-nut legislation that the Charter is supposed to prevent. However, I also think that it’s a highly ambiguous provision. What does ‘affect’ mean? What does ‘proceedings’ mean? What does ‘commenced or concluded’ mean? (And some judges can’t even work out what ‘before the commencement of Part 2′ means!) In this regard, s49(2) is by no means alone.

The Court of Appeal last week did its best to grapple with another transitional provision (in the Crimes Act 1958), one of the thousand or so that are scattered throughout Victorian legislation:

The Charter and The Chaser

All charges against the Chaser crew have been dropped for their globally famed APEC stunt. This is a tremendous disappointment to me. Not, of course, because I wanted the crew to be convicted, but because it would have been a great test of the malleability of security legislation to encompass freedom of speech (and the media’s role in a democracy.)

The relevant offence provision in the APEC Meeting (Police Powers) Act 2007 is:

19 (1) A person must not, without special justification, enter a restricted area or any part of a restricted area.

The whole fun point of the Chaser stunt is, of course, that they did enter a restricted area, despite the ring of steel. Hence, they face the back-up ring of (lawyers’) horsehair. But did they have a ‘special justification’, from the list exclusively set out in s37(2) of the Act?  Nick Cowdrey’s decision to let the crew off was based on three grounds, all dodgy.

First, he felt that all the crew could apply the general criminal law defence of honest and reasonable mistake of fact, because they never thought that they’d get into the restricted area. This is nonsense, because that defence isn’t about what they thought would happen, but about what they thought was happening. I can’t see any basis for a claim that they reasonably thought that they weren’t in a restricted area, what with the ring of steel, etc.

Second, he applied s37(2)(b), which provides a ‘special justification’ if ‘the person is required, authorised or permitted to be in the area by the Commissioner or a police officer’. Maybe the crew thought that they had been given permission to enter by the police officer? Again, nonsense. Permission given as a result of fraud isn’t permission. So, if the crew knew that the police stupidly thought that they were Canadian officials, then they couldn’t believe that they had permission (and, indeed, didn’t have a valid permission.) Could the Chaser crew have reasonably believed that the police were happy to let the Chaser crew – of all people? – into the ring of steel. No way.

Third, he applied s37(2)(c) – if ‘the person is required to be in (or pass through) the area for the purposes of the person’s employment, occupation, profession, calling, trade or business or for any other work-related purpose’, but only to some of the crew. He reasoned that the employees were just following the orders of Julian Morrow.  This isn’t nonsense, but if correct shows that this exception works in a strange way. You commit no offence if your boss tells you do to something? Just obeying orders… Surely, not all orders could count for this defence. And, anyway, if following orders is a justification, why isn’t giving orders. (According to Cowdrey, Morrow, the orderer, could still be convicted, but Cowdrey believed that he’d be given a slap on the wrist anyway.)

I’ve long thought that s37(2)(c) applied myself, but for different reasons to Cowdrey’s and not just to Morrow’s underlings.

Justice Heydon’s 2020 submission

Before the 2020 summit, there was some controversy about the role of former judges in the governance stream. But what about current judges? For all the usual boring reasons, sitting judges have to keep well away from public discussions about law reforms, especially ones that might raise constitutional problems. That may have proved frustrating for Justice Heydon.

Today, the High Court made a terse contribution to a major current debate in sentencing law: whether and how to distinguish between different drugs when it comes to sentencing possessors and traffickers. Back in the olden days, courts used to routinely distinguish between soft and hard drugs (later adding a ‘middle’ category.) Hard drugs (e.g. heroin) merited a higher sentence, due to their harmfulness, than soft drugs (e.g. cannabis.) But the kids these days are using new drugs that make these distinctions complex. In particular, where does ‘ecstasy’ (as they call it) fit in? In the 1990s, judges mulled over whether the ubiquitous party drug was all that much worse than dope. But, this decade, with nice kids dying and gangland wars and all that, judges came to see ecstasy as ‘emerging as a very significant community problem.’

Two years ago, a five-judge bench of the Victorian Court of Appeal responded to all this confusion by ruling that the Victorian drug statute – where the maximum sentences are all about quantities of drugs and their commercial nature – barred courts from considering the general harmfulness of a particular drug at all. Last year, it applied the same reasoning to the Commonwealth’s drug statute, dismissing an ecstasy possessor’s complaint that his sentencing judge had declared that “In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin.” The High Court, worried about an apparent variation amongst the states in how they sentence federal drug offenders, took the case. Today, a majority ruled that judges neither could nor should try to make a comparison between different sorts of drug. However, they left unresolved the question of whether sentencing judges can still take account of distinguishing features of a particular drug as part of their (sigh) ‘instinctive synthesis.’

Justice Heydon wrote a separate judgment and took a different, nastier line:

The Queen of Criticising Things

Justice King, who recently described herself (to a jury!) as the Queen of Banning Things, seems to have taken a lead from the Court of Appeal, who recently saw fit to judge, not only the validity of her suppression orders, but also Channel Nine more generally and Underbelly in particular.

The latest suppression order (against Seven rather than Nine) differs from the Underbelly case in that it involves a single programme, shown during the trial and not, it seems, involving any actors or music (though I suspect that there’ll be some salacious behaviour and humour, intentional or otherwise.)  What is actually in the programme must now be a mystery, because the content and subject-matter of Today Tonight’s “Crime Mums” segments are also, naturally, suppressed. But how likely is it that the show says anything about Evan Goussis?

Actually, all we are allowed to know about the show is what one Victorian judge thinks of it.

No Canada: The EM vs Liberty and Security

Charter s.21(1) is a gem amongst the Charter’s human rights:

(1) Every person has the right to liberty and security.

Unlike so many of the Charter’s rights, it isn’t weighed down by caveats (like arbitrariness, unlawfulness, reasonableness or responsibilities) that are common in the ICCPR. I’ve argued elsewhere that the Charter’s drafters did a poor job in removing all such language from the ICCPR’s rights when translating them into Victorian legislation. There is no need for these caveats, because the Charter, unlike the ICCPR, has a general limitations provision in Charter s. 7(2).

In Canada, the first jurisdiction to use a general limitations provision, the equivalent to Charter s. 21(1) is s7 of its Charter:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The words ‘liberty’ and ‘security’ have each been given broad interpretations by the Supreme Court of Canada. ‘Liberty’ has been held to cover a person’s ’personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance’  and security to cover ‘both the physical and psychological integrity of the individual’. These definitions has relied upon in cases on hot-button culture wars topics like abortion and medical marihuana.

However, these bold consequences may not flow through to Victorians via Charter s.21(1). Why? Because of the Explanatory Memorandum to Charter s21(1) (emphasis added):

Sub-clause (1) establishes a person’s right to liberty and security….This clause is modelled on articles 9 and 11 of the Covenant and embodies safeguards that are well recognised in international law. It is a right concerned primarily with physical liberty! It is intended to operate in a different manner to article [sic] 7 of the Canadian Charter of Rights and Freedoms which guarantees the right to “life, liberty and security of the person” in that the Victorian provision is not intended to extend to such matters as a right to bodily integrity, personal autonomy or a right to access medical procedures!!!

I’ll go out on a limb (albeit a fairly sturdy one) and say that this would have the be the single most rights-reducing EM clause ever. Here are ten reasons why it should be ignored:

Chartered waters

The Australian governance stream of the 2020 summit has ‘expressed strong support for a statutory Bill or Charter of Rights, with minority support for a parliamentary Charter.’ Apart from what is (surely) the last gasp for the ‘Bill… of Rights’ langauge in Australia,  there are no surprises here. The media certainly picked up on the charter proposal – they’d probably written this stuff in advance -  although the Republic discussion completely overshadowed it. Interestingly, both the republic and the charter seem to have been the responsibility of a single branch of the governance stream: ‘Rights and Responsibilities’ (sigh). Disappointingly, there’s no hint so far that anyone sees (or is willing to push for) a link between these two issues.

What is also disappointing, and a little surprising, is the lack of language about how such a charter of rights will come about (a contrast to the discussoin of the republic.) This is meant to be a summit of ideas and there’s no way that a mere proposal to have a statutory charter can qualify as that. Reports that Rudd was worried about the lacklustre nature of the governance discussion and got McKew to pep things up adds to my concern. I assume – or at least hope – that some genuinely new ideas about how to get a charter enacted and maybe how it will operate in the federal sphere were discussed and sifted, and that the final report, whenever it emerges, will be more interesting than this stuff.

That being said, there were two interesting tweaks on the charter idea in the initial report that I’m sure that Rudd will seize on.

Review: Human Rights Charters in Australia

Peter Faris & Mirko Bagaric’s Human Rights Charters in Australia is the first and most expensive of the three current Charter books, coming in at $120. It’s published by a small press – Sandstone Academic Press – which may explain the high price (for example, because small presses can’t negotiate bulk licences for reprinting Victorian legislation.)

It’s not clear to me whether or not the small press also explains the lack of the usual trappings of legal treatises: tables of legislation and cases; an index; headers that show the relevant chapter title, rather than just the authors and the book’s name over and over; and basic proof reading. These limitations alone leave the book of doubtful utility to the average professional trying to grasp these new statutes.

Of greater concern is the content.

Some real community consultation

So, here’s my 2020 summit idea. (Not that I’m a summiteer or a rejectee.) But first some preliminary opinions, which will please no-one.

James Allan thinks the fix is already in on a bill of rights (and more) because of the make-up of the Summit’s governance panel: judges, academics, the usual human rights crowd:

Then you can fill out the numbers and sit back and wait for what you knew you’d get going in.
There’ll be calls for a bill of rights. There’ll be calls for Australia to become a republic. And such
authoritative calls could prove mighty useful down the road, especially if that was what you
wanted before you started this little charade. Of course, when we play this game, we would
have to concede, were we honest, that the group we had assembled was nowhere near being
representative of the views of Australians as a whole.

I think he’s right. Not, mind you, because the numbers are stacked, but because there is now a set roadmap to a statutory bill of rights that no summiteers who want to avoid looking extremist can oppose: the community consultation on human rights. The consultation is the real fix, because its main question for the community is: do you want your rights better protected? Nearly everyone will say yes and everyone who doesn’t will sound like (and probably actually be) a crackpot. The hard question – the details of the protection – is a complex package that no lay member of the community will be on top of. The committee will then cherry pick the bits it wants and ignore the rest. If the committee foolishly includes something that wasn’t on the Attorney-General’s pre-announced wishlist – socio-economic rights, for example – then the A-G will cut that out of the final draft. I say all this without doubting, for a second, the genuineness of the people who have been involved in such consultations (including friends of mine.) The problem, as I’ll get to, is with the whole idea of consultation at this stage.

James Allan’s solution is a different form of community consultation:

The issues of whether to have a home-grown head of state, or whether to hand lots of decision-making power to an aristocratic judiciary, are not issues on which expertise should trump numbers. Letting the numbers count is a dumb way to pick a top physicist or malaria expert. But letting the numbers count is a supremely excellent way to decide whether we pay the costs involved in moving to a republic or whether we want to take power away from our elected representatives and give it to committees of ex-lawyers (which is what judges are and which is why there is something so self-serving about judges calling for a bill of rights).

In other words, a referendum. This too is a fix. The referendum will inevitably include a detailed model (or, even if it’s non-binding, will – because of the way Australians associate referenda with constitutional change – the spectre of one.) The opponents will be able to bring up all manner of scare issues and trumped up constitutional technicalities. Supporters will tear eachother apart in differences about the details and papering over the inevitable ambiguities. The referendum’s negative result will be as inevitable as a community consultation committee’s positive report.

The problem is that human rights legislation is just that: legislation. Not a mystical document. Not a social upheaval. And communities don’t – and can’t – legislate.

Not quite 2020

There’s been some controversy about the Charter angle of the Australian governance stream of this coming weekend’s 2020 summit. But what have the Summitteers been told?

The 2020 website offers them some preliminary information, in the form of rambling ‘Summit topics’ – the governance version bears a disturbing to Les Murray’s ‘poetic’ draft of a new preamble for the Constitution – and a ‘background paper‘, alas actually a set of dreaded Powerpoint slides.

The only explicit reference to the rights issue is half of slide 13 (on ‘human rights and civil responsibilities’):

Meh. That’s a large slab of history, but omitting a lot of more interesting developments, such as Australia signing the ICCPR, Canada, NZ, Hong Kong, South Africa and the UK adopting human rights laws and the High Court’s freedom of expression cases. The worst bit is the last bit, which ignores three of the four years of the ACT’s HRA experience and the entire recently finished first year of legislative scrutiny in Victoria (with its record of detailed statements of compatibility.) A cut-and-paste job from 2005?

Surely, it’s the actual features of the ACT and Victorian laws – the rights, reasonable limits, interpretation, declarations, obligations and sovereignty – and some sense of how they’re traveling that the Summiteers need to know about?

Is the parliamentary dialogue working?

Most of VEOHRC’s Charter 2007 report card was about various Victorians’ preparations for 2008. The exception was Chapter 8, on ‘Parliament and the 2007 legislative agenda.’ Parliament House was unique in 2007 as one of the only spaces where the Charter was actually operational. (The others were VEOHRC’s own offices and the ghost of s6(2)(b).)  Parliamentarians introducing bills had to table Statements of Compatibility. And SARC had to report on each bill’s incompatibility with human rights.

Chapter 8 reviews the statements and SARC comments and, especially, the interaction between them. Here’s the key finding:

While SARC raised concerns about the human rights compatibility of a number of bills during 2007, the Commission is aware of only one BIll that was amended in response to these concerns.

SARC’s independent vetting of the human rights compatibility of Bills is a critical means by which understanding of the meaning and implications of human rights will be developed in Victoria. While the Commission appreciates that SARC and Ministers will often ‘agree to disagree’, we would expect to see evidence of SARC’s concerns being taken account – or at least a robus parliamentary exchange in relation to these matters.

To get a handle on the numbers of occassions where there was an agreement to disagree, the Commission found that ‘SARC assessed Charer compatibility differently to the Minister’ for 23 bills. The ‘one Bill‘ that was amended in response to a SARC report concerned a drafting error that crept in to the definition of incest in 2006. [Hi there folks who like to google the word 'incest'! And, bye bye.]

Parliament is sitting right now and the lower house will this week debate the Constitution Amendment (Judicial Pensions) Bill 2007. As I posted earlier, the Minister and SARC had a big disagreement on this bill.

The Charter’s first report card

These days, report cards aren’t the feared documents I recall from my school days. My toddler’s creche gives its ‘students’ report cards. As you might imagine, they aren’t heavy on the criticism. Nevertheless, you’d have to be a very proud parent to miss the faintness of some of the praise they came up with: “Zachary has a lot of fun trying to eat”; “Zachary primarily communicates through laughter”; “Zachary is learning to explore other children and their hair.”; “Zachary is starting to learn about cause and effect. He spends all day tapping the floor with a toy hammer.” At least he’s happy.

The Charter got its first report card today, courtesy of its chief carer VEOHRC and Charter s. 41(a):

The Commission has the following functions in relation to this Charter-

(a) to present to the Attorney-General an annual report that examines-

(i) the operation of this Charter, including its interaction with other statutory provisions and the common law; and

(ii) all declarations of inconsistent interpretation made during the relevant year; and

(iii) all override declarations made during the relevant year

There’s nothing to report on paras (ii) and (iii) to date (if there ever will be), and the Charter was hobbled in its first year by the delayed commencement of the interpretation and conduct mandates, but VEOHRC’s report still runs to 80 pages. It’s called “First Steps Forward“. (Sniff. That’s more praise than Zachary got when he was one. He first walked at 18 months, just scraping into the 5th percentile.)

I found First Steps Forward a surprisingly illuminating read for an annual report (but that’s me.) For those who aren’t so involved, here’s some interesting instances of measured praise:

Could the Charter reduce Victorians’ rights?

A key claim of proponents of human rights statutes is that such statutes can only improve people’s human rights. We can never lose rights.

As is the norm, the Charter gives this claim legislative force in Charter s.5:

A right or freedom not included in this Charter that arises or is recognised under any other law (including international law, the common law, the Constitution of the Commonwealth and a law of the Commonwealth) must not be taken to be abrogated or limited only because the right or freedom is not included in this Charter or is only partly included.

This section ensures that we won’t lose our rights simply because they are omitted from the Charter.

However, this leaves a loophole: we might still lose our rights because they are included in the Charter. In a comment on three recent criminal appeal cases published in this month’s Public Law Review, I argue that such an approach was taken by the High Court last year in relation to a number of narrower human rights laws.

The case was Carr v Western Australia [2007] HCA 47. Carr is a moron who, after denying his involvement in a bank robbery during a formal police interview, cheerfully boasted about his prowess (at both bank robbery and interviewing) to his interviewers, unaware that he was being taped on the lock-up’s CCTV. The legal issue mainly involved the interpretation of the WA statute for mandatory recording of confessions. (Incidentally, the High Court interpreted that statute’s exclusionary rule very narrowly, bizarrely claiming that doing so would improve the integrity of WA policing.) However, the High Court took the opportunity (unasked for by the parties to the appeal) to rule that there was no common law rule that the police’s failure to caution Carr or offer him a lawyer could itself require the exclusion of his confession. Why? Because some parliaments had enacted statutes promoting just such a rule:

Hard words from Justice Young

This month’s Australian Law Journal (April 2008) includes a couple of relevant comments from its editor, Justice Young. One appears to relate to the hearsay evidence issue posted about here and, indeed, to myself and a Melbourne Law School colleague:

In The Age of 27 February 2008, following a criminal trial in which the accused was acquitted of murder, it was reported that the jury was precluded from hearing evidence that a friend of the victim had been told by the victim that the accused had told the victim during a phone call that he would kill her. The article said that some named persons who were labelled as “legal experts” advocated that the law be changed to allow such evidence, at least under controlled conditions. Victoria is currently re-examining the laws of evidence principally to see whether it can adopt in whole or substantially the Uniform Evidence Act.

It is to be hoped that re-examination of the rule does not take place over-influenced by a particular recent case, as hard cases make bad law….

It seems that the article Young is referring to is this one, which does indeed report about such a trial and names myself and Andrew Palmer as ‘legal experts’. But, contrary to Young’s commentary, neither Andrew nor I advocated a change to the law to allow such evidence, nor did the article claim that we did. Indeed, the article quoted my doubts about the change, especially in relation to the case discussed. (And, of course, I spelt out those doubts in detail here.) It’s quite rare to be accurately and precisely quoted by the lay press on a legal issue. What a pity that the legal press isn’t up to the Age’s standard. (The Age, but not the ALJ, also correctly told its readers that the debate about adopting the UEL in Victoria is long over – as the Victorian Government’s statement of intentions makes clear – save, of course, for parliament. Apparently, major government announcements are slow to reach the NSW Law Journal‘s head office.)

Also, am I just being paranoid, or is there a barb in the (otherwise accurate) remark that Andrew and I were ‘labelled as “legal experts”‘ by the Age? Surely not,

The right to a fairer trial

Slow as things have been on the Charter front in Victoria, they’ve been even slower in the ACT, now nearing the end of the fourth year of its Human Rights Act. The Territorians have had just one case in the first quarter of this year, brought down on the last day in March. However, it’s an important case (or, more correctly, part of a very important series of ACT human rights decisions, summarised over at ACTHRA here, here and here.)

In R v DA [2008] ACTSC 26, a unnamed defendant being tried for an unnamed charge (a Canberran gangland murder?) feared that some of the mysterious evidence against him would cause lay Canberrans to have an emotional reaction. If one of those emotional Canberrans is on DA’s jury, then this raises a human rights issue under s21 of the ACT’s Act, which is similar to the Charter’s s24(1):

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The prosecution argued that the risk of an emotional reaction can be managed by the usual common law approach: censor the evidence and/or tell the jury not to be emotional (and don’t forget to cross your fingers) That’s all a fair hearing requires.

DA had a different solution: let a judge (who apparently have superior emotional control) try the case instead. ACT law (unlike the Commonwealth Constitution’s ‘right‘ to a jury trial) permits defendants to elect to have a trial before a judge for just this reason. The problem was that DA had missed his ‘election’ date (unwittingly, he claims.) But DA had a further solution: long before the HRA was enacted, a court ruled that the election right is not a once-off; rather, it will be revived if the indictment or the trial date is changed. So, DA asked, even though there was no particular reason to do either of those things, could the Court just make one of them happen so that he can make  fresh election? In R v DA, Higgins CJ decided to do what DA asked.  He cited the ACT HRA’s fair hearing right as the reason why:

[T]here is recognised at common law a right to not have an unfair trial, which is different from s 21 of the Human Rights Act 2004 (ACT) which confers a right to a fair trial. That is a very different emphasis. It seems to me that activates the remarks that Kirby J made in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 where his Honour departed from the approach of the other members of the Court on that very distinction. The majority were looking at the question of the right to avoid, in respect of a trial, unfairness. His Honour referred to various Human Rights Conventions, including the International Covenant on Civil and Political Rights (ICCPR) upon which the Human Rights Act 2004 of this Territory is based, and as a result held that there is, or ought to be, a right recognised under common law to a fair trial…. We do not have to have that debate in this Territory because that right is conferred by the Human Rights Act 2004, thereby modifying the common law accordingly.

In essence, it comes down to this. This is not a case where I could hold that to vacate the trial date, so as to reinstate the s 68B right in the accused to elect for trial by judge alone, would result in an unfair trial. It seems to me that is no longer the test: the test is whether the accused has the right to make an election as part of the holding of a fair trial. In other words, fairness is not only a question of objective fact, but also a question of perception…

It seems to me that, having regard to s 21 of the Human Rights Act 2004, I ought to give decisive weight in the circumstance of there being no prejudice to the Crown or to any Crown witness, or to the trial, the efficiency or otherwise of the trial. Indeed it may be to the greater efficiency of the trial to accede to the application made, so I do so.

These are fighting words, according to Richard Refshauge, the ACT’s most recent DPP and an incoming judge in Higgins CJ’s own court. In relation to an earlier judgment that also held that HRA s21 sets out a ‘positive’ right to a fair trial, rather than the common law’s ‘negative’ right not to have an unfair trial, Refshauge wrote:

I have to say that I find that statement at least curious. It proceeds on an apparent view that fairness of criminal trials is a continuum: fair… neither fair nor unfair… unfair. I reject that continuum. It seems to me that there is no such thing as a trial that is neither fair nor unfair. If a trial is not fair, then it is unfair. If a trial is not unfair, then it is fair….

Accordingly, despite what the court has said, I remain of the view that in general terms, the fair trial principle enshrined in the Human Rights Act 2004 (ACT) remains closely aligned, if not identical, with the principle at common law.

Is this seemingly esoteric dispute important? I happen to think it is and that Higgins is right and Refshauge is very wrong.

Spotcheck results

Three weeks ago, I posted my ‘objective test’ for the utility (to me) of the three new Charter books. (‘Objective’, in the sense of being free of my apparent bias towards one of the three: Evans & Evans, Australian Bills of Rights, LexisNexis.) My optimism that I’d receive all three ‘after Easter’ was a bit misplaced. The first book to arrive – a week after I ordered it – was only published during that week (Pound & Evans, An Annotated Guide to the Victorian Charter of Human Rights and Responsibilities, Thomson) and the last book to turn up in my mail box (mid-last week) has been published for months (Faris & Bagaric, Human Rights Charters in Australia, Sandstone.) One thing I have learnt is that the LIV bookshop doesn’t always keep to its ‘delivered within five days’ promise. (They did tell me that Faris & Bagaric was sold out when I ordered, though it took them two weeks to do that and there was no explanation of the delay on LexisNexis’s book.) Anyway…

My perspective for my spotcheck was me – with my own quirky interests – flicking through each book to see how they deal with some pet issues of mine. Here are the results:

(Counts are of full analyses, with mentions/brief analyses in brackets)

So, if I was browsing through the three books for the one that most matched my quirky interests, I’d choose Price and Evans.

The Charter vs the War on Iraq

Yesterday, the House of Lords issued a ruling whose gravity is demonstrated by the fact that no less than nine Lords were on the bench. It concerned an effort to force the British government to hold an inquiry into the most controversial international law issue of recent times: the legality of the (second) war against Iraq.

The human rights hook is the European Convention’s right to life, which is very similar to Charter s. 9:

Every person has the right to life and has the right not to be arbitrarily deprived of life.

Both international and comparative courts have held that this right has a procedural component: where someone dies in unclear circumstances that may implicate the government, there must be an inquiry into the death. This procedural has a particular force in countries where the rule of law is weak and opponents of the government routinely die in odd circumstances, but it applies everywhere. There’s no doubt that Victorian public authorities (notably ministers) are subject to this obligation under the Charter’s conduct mandate (unless another law makes it reasonable to fail to act.)

The litigants in England – relatives of soldiers killed in the Iraq war – wanted the House of Lords to require Gordon Brown to hold an inquiry, not just into the immediate circumstances of the soldiers’ death, but also into the circumstances that led to the war itself, without which those deaths would never have happened. To no-one’s surprise, all nine Lords refused to make such an order.