SARC on two rights quandaries

Apart from its comments on the new Evidence Bill 2008, SARC’s latest report highlights two difficult rights questions posed by bills presently before the Victorian Parliament:

First, given the right to equal protection without discrimination (including on the ground of religious belief and practice), how can Victoria have public holidays over Easter and Christmas, which make it much easier for (Western) Christians to balance work/school and religious observance than other religions?

Second, how, compatibly with human rights, can Victoria solve the problem of litigants accused of violence against someone inflicting further trauma on that person (or intimidating them into dropping their story) by personally cross-examining them? Victoria, like other jurisdictions, has passed laws stopping rape defendants from personally cross-examining rape defendants, but, unlike other jurisdictions that instead provide for the judge or a court-appointed intermediary to do the questioning on behalf of an unrepresented accused, Victoria – on the advice of its law reform commission – instead requires defendants to get a lawyer or requires Legal Aid to provide one. The new Family Violence Protection Bill extends this scheme to respondents to applications for family violence intervention orders in relation to questioning of kids, relatives, alleged victims of violence, people with mental disabilities and anyone else who may be harmed. But there are two crucial details:

• first, presumably because there are a lot of family violence intervention applications and many unrepresented respondents, the bill permits Legal Aid to charge for the lawyer they provide, payable whenever the respondent has means (and enforceable via a charge on their property)
• second, in common with the scheme for rape defendants, the bill provides for defendants to be told that if they don’t get a lawyer (including, if necessary, agreeing to charges from Legal Aid), then, not only can’t they cross-examine, but they also can’t give evidence contradicting the witness! This seems to be a very strict version of the rule in Browne v Dunn (an evidence law rule aimed at ensuring that parties don’t spring factual arguments on eachother.)

The combined result: respondents to many family violence intervention orders will need to pay for the right to defend themselves! Yikes. There’s no doubting the importance of the goal of stopping respondents from harassing their accusers, but this is a classic Charter s. 7(2) issue: is the remedy proportional to this goal and are there any less extreme ways of achieving it?

Harmonisation vs the Charter

Last week’s SCAG meeting focused, as it nearly always does, on harmonisation of Australia’s (and NZ’s) legal systems. Let me sound some notes of disharmony. The harmonisation movement was previously a movement to ensure more uniformity in Australian law. Anyone who’s been an academic in an Australian university will have read the standard form undergraduate paper that describes umpteen different legal rules on a particular topic across Australia’s states and territories and then declares that this disunity is a bad thing and laws should be made uniform (sometimes with a brief pause to note that uniformity is a hard thing to achieve.) I’ve always felt that the goal of uniformity needed more cogent support than a sense of aesthetics or a law student’s frustration at having to do so much research. In my research on DNA profiling, I argued that the goal of uniform Australian laws on every aspect of DNA – motivated, it seems, by the dog-wagging tail of the folks in charge of doing the software for the national DNA database – was directly responsible for the adoption of incredibly substandard laws in most Australian states, laws that notably failed to adequately deal with some fundamental questions of how cross-border investigations should operate. The switch to harmonisation at least recognises that it’s intelligible and sensible interactions among jurisdictions, rather than cookie-cutter statutes in each of them, that is the goal.

Nevertheless, uniformity remains the easiest path to harmonisation. As I’ve detailed previously in this blog, the goal of uniformity can cut across the goals of the Charter. One technical problem is that a common scheme for achieving uniformity – the passage of head legislation in one jurisdiction, and ‘adopting’ legislation in others – can take the head legislation (assuming it isn’t Victorian) outside the scope of the Charter’s interpretation mandate. Or maybe not. In its rely to SARC’s query about whether or not South Australia’s natural gas laws, regs, rules and instruments – each given force of law in Victoria by Victoria’s National Gas (Victoria) Act 2008 – is covered by Charter s. 32, the Minister has simply replied:

As the National Gas (Victoria) Law, the National Gas (Victoria) Regulations, and the National Gas Rules are Victorian law, Charter 32 of the Victorian Charter of Human Rights and Responsibilities Act 2006 does apply.

Well, there’s no doubt that they are Victorian law, but I still think there’s a lot of doubt about whether or not they are ’statutory provisions’, which is what Charter s. 32 applies to.

But the Evidence Bill 2008, currently before the Victorian Parliament, really highlights the problems that the goal of uniformity poses for the Charter’s operative provisions. The first clause of the new bill reads:

1 The purpose of this Act is to make fresh provision for the law of evidence that is uniform with Commonwealth and New South Wales law.

The Commonwealth and NSW laws that the bill seeks to be uniform with were not only developed outside of Victoria, but long before the Charter was ever enacted. Indeed, even the more recent law reform inquiries that produced refinements of the UEL pre-dated the Charter. So, you really have to wonder whether the anticipated process of careful assessment of a proposed bill for compatibility with human rights did – or indeed could have – occurred.

Two examples of this problem are highlighted in SARC’s new report on the Bill.

The French Court

It was worth electing Rudd after all! I’m smiling today about the appointment of Robert French as the next Chief Justice of Australia. Unless he leaves early, we’ll have nine years of the French Court, which will hopefully be enough to get us over ten years of the Gleeson Court. It’ll be the French Court who will decide some key lingering questions about the Charter, not to mention potentially hear some regular appeals from the Victorian Court of Appeal about its operation.

So, why am I pleased? Mainly, because of my lack of enthusiasm for two of the other judges who’ve been mooted for the job: the CJs of NSW and Victoria. For starters, I’d like some geographic diversity. After all,  would someone like Dyson Heydon have ever been appointed if it wasn’t for Howard’s Sydneyphilia? But it’s also about the incumbents themselves. I’ve never been all that impressed by Jim Spigelman, perhaps because I don’t much like his judgment writing style; I’m thinking two hundred paragraphs of quotes from very precedents, followed by: “For the above reasons, I allow/dismiss the appeal.” But it’s especially because of my shock at an incident back in 2001 when Bob Carr, incensed at the sentences being handed out in rape cases, demanded that Spigs come to talk to him about it… and Spigs went!

As for Marilyn Warren, she’s put her name to two lousy Charter judgments so far this year, both involving giving short shrift to freedom of expression (see here and here), and one involving some very dubious process too (see here.) While I hold onto the hope that these were abberations (or just specific to that particular right), for now, I’m quite relieved that Gillard’s rumoured push for her to be chief has not occurred. That being said, I’m a little torn on gender diversity grounds and certainly hope a woman will replace Kirby (albeit also alarmed at the prospect of three Susans on the court.) So, French is basically the devil I don’t know, as is his court (given its lack of criminal law jurisdiction.) But the Gleeson court (full of state judges and commercial federal judges) leaves me enthusiastic for someone from  a different background, given his association with native title law. 

But, more importantly from a Charter perspective, his published speeches have promising indications on his willingness to engage with Victoria’s new statute in a positive way: he’s clearly been following the new human rights statutes and the debate about them closely, especially in his native WA. While he meets James Allan’s test of not coming out in support of such statutes, I don’t think Professor Allan will be very pleased with his approach, for example relying on George Williams’s analysis of the pros and cons. More importantly, his speeches have touched on two of the big political and constitutional issues about Victoria’s Charter:

That’s [potentially] incredible!

On a day when the Rudd government is due to announce a winding down of the Keating-Howard mandatory detention regime for asylum speakers, this curious section of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (UK) has just been read down:

8(1) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim, a deciding authority shall take account, as damaging the claimant’s credibility, of any behaviour to which this section applies.

(2) This section applies to any behaviour by the claimant that the deciding authority thinks – (a) is designed or likely to conceal information, (b) is designed or likely to mislead, or (c) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant.

The section goes on to require courts to require a variety of acts as fitting the requirements of sub-s(2), including failures to produce a passport, producing a valid passport, destroying a passport, destroying a ticket or not answering a question (all without reasonable excuse) or failing to make a claim for asylum at first reasonable opportunity. The Court observed that the section was brought in after the then Home Secretary, David Blunkett, stated his concern that potential asylum seekers were destroying their documents to prevent assessment of their real country of origin and to confound being deported.

The Court of Appeal in JT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 angsted about this section, which seemed to be telling courts how to find-facts, which they observed would be contrary to the ‘principle of legality’. I think that, assuming asylum claims are civil proceedings, a similar section in Victoria would be contrary to Charter s. 24(1):

24(1) A… party to a civil proceeding has the right to have the… proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The difficulty for the Court was how far it could go in re-interpreting the section under the interpretation mandate. The Court duly cited the current House of Lords precedent on interpretation, Ghaidan v Godin-Mendozza, which ruled that re-interpretation must not contradict a statute’s ‘fundamental features.’

Lord Justice Pill duly rejected an argument that ’shall’ should be interpreted to mean ‘may’, but accepted alternative arguments that ‘damaging’ should be read as having the word ‘potentially’ in front of it or that the entire phrase should be re-read as ‘when assessing any damage to the complainant’s credibility’. Pill’s fellow lords went with the first option. I’m a bit baffled as to why the latter two readings are more acceptable than the first one and, indeed, what ‘fundamental features’ of the statute have been respected by this re-reading. In Victoria, where our interpretation mandate is not meant to follow the wilds of the UK’s version, a declaration of inconsistent interpretation (assuming the Charter s. 7(2) test isn’t satisfied) would seem to be the appopriate response to a provision like this.

The Charter vs DNA sampling

I spoke too soon last post (as I often do.) The Charter has gotten a mention in a County Court judgment that is public available. I’ve known for a while that the County Court does publish selected judgments online, but they nearly all seem to be cases concerning the Accident Compensation Act. Fascinating for all those who want to know the percentage impairment for the loss of a middle figure or whatever. However, a search on the word ‘Charter’ that I typed in just now popped out a criminal case  brought down in June: R v Long [2008] VCC 595, curiously filed under ‘L’. Not that the judgment proves illuminating of anything except Victorian judges’ continuing inability to read the statutes they’re asked to apply.

This matter was a follow-up to a 2007 crimnial trial. Michael Long faced nine charges relating to an incident with Jeanette Long (his wife? Or ex-wife?), including kidnapping and rape; however, he was only convicted of a single charge relating to slapping her in the face. The police wanted to retain a DNA sample taken in relation to the more serious charges, so they asked the trial judge, Susan Cohen, to make an order. And here’s where the Charter got a mention:

In the course of written submissions, an issue was raised on behalf of the respondent concerning the Charter of Human Rights. I had my preliminary views notified to both parties with a request for any further submissions on them, and no such submissions were forthcoming. I have not changed my preliminary views as then set out, except to note that although this matter bears a 2006 file number, the presentment was not in fact filed until July 2007. However, as that date, and indeed the whole of the trial, the jury verdict and the sentencing, occurred prior to the commencement of the Charter of Human Rights, the same reasoning applies and I am not satisfied that it has any application in this proceeding. The merits of the substantive argument can be left for another case.

Well, that’s pretty vague, but it seems obvious what’s going on. Judge Cohen is applying the dreaded Charter s. 49(2):

49(2) This Charter does not affect any proceedings commenced or concluded before the commencement of Part 2.

But, as readers of this blog – and anyone who bothers to read the Charter’s commencement clause – well knows, Part 2 commenced on 1/1/7. So, ‘the whole of the trial, the jury verdict and the sentencing occurred’ after the relevant commencement. Judge Cohen, like Bell J and VCAT Member Nihill before her, has got the date wrong, presumably misled by the Charter’s incorrect EM. That being said, again like Bell J, it looks like she may actually have gotten the right result, because, if R v Williams [2007] VSC 2 is correct, then the fact that Long was charged before 1/1/7 (as it seems he was) is enough to mean the Charter s. 49(2) applied. But that assumes that this DNA proceeding is part of the earlier one; no matter what date Cohen J was using, she should have considered that question.

Enough is enough, surely. This is now becoming quite a trend. Isn’t it about time an urgent all-points bulletin was sent to all judges pointing out the correct date in Charter s. 49(2)?

It’s a pity that Cohen J (mis-)applied Charter s. 49(2), because I would have liked to have known more about the Charter arguments in this case, which raise a potential conflict between Victoria’s DNA sampling regime and the Charter.

Keeping up with the cases

I’ve done a little re-arranging and adding to the links on the right-hand side of this page. The main addition is the new section on ‘recent cases’, which is part of what I use to keep up with the latest human rights case law (aside from reading the newspapers.) All Victorian statutory interpreters arguably ought to be keeping up, thanks to Charter s. 32(2):

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

Each of the links is a pre-programmed search of a publicly available database of caselaw that seems to work quite reasonably at picking out the latest cases from key jurisdictions that raise an issue under a human rights statutes. All of them only pick out cases from appeal courts (rather than first-instance and tribunal decisions), with the exception of the Vic Charter cases (where the pickings are so slim.)

Here are the details:

• Can Charter cases: All Canadian Supreme Court, Federal Court of Canada and provincial Courts of Appeal cases that mention ‘The Charter’ and are archived on Canlii, in reverse chronological order.

• ECtHR cases: A simple link to the ‘recent European cases’ page of Baillii. (No need to search, as they are all rights cases, of course.) The Court’s own HUDOC gives a fuller list, but it’s interface seems to have been coded some-time during World War II! I find it more useful these days to read ECHRblog.

• HKBor cases: Two links for FAC (Final Appeal Court) and CA (Court of Appeal) cases from Hong Kong that mention “Bill of rights”, in reverse chronological order. I’m using the official Hong Kong courts site, rather than HKLii, as the latter’s ’sort by date’ function doesn’t seem to work. The official site (like all official sites, it seems) is slow and clunky. And I’ve had to separate the two top courts because they can’t be search simultaneously without capturing the lower courts too. Nevertheless, I’ve already found this search useful in picking up some interesting criminal process cases from HK, on the non-curial effect of the presumption of innocence and the extent of the  privilege against self-incrimination. HK deserves particular attention in Australia, because of HK’s common law link;  its particular link to the Australian judiciary, via the occasional appearance of Anthony Mason and Michael McHugh as part-time judges on the FAC; and its somewhat Charter-like Bill of Rights Ordinance (complicated by the replication of some provisions in its post-1997 Basic Law.)

• NZBoRA cases: Two links for the Court of Appeal and the new Supreme Court of New Zealand that mention “Bill of Rights”, in reverse chronological order, from NZLii. Don Mathias’s blog notes many of these cases, but not (typically) the non-criminal ones.

• SABor cases: A combined search of Saflii of South Africa’s Supreme Court of Appeal and Constitutional Court for cases that mention “bill of rights”, in reverse chronological order.

• UKHRA cases: This search shows every House of Lords, Privy Council and England & Wales Court of Appeal (crim and civ) cases that has ever mentioned the phrase “Human Rights Act” and has made it onto Bailii. Nice for keeping up with the latest but also for scrolling down memory lane to the earliest ever mentions of that statute, before it ever commenced. Maybe Victoria will have over 1000 cases at appellate level on the Charter in a decade or so. Maybe not.

• UNHR Com cases: A link to recent cases from the official site (with its League-of-Nations-era web interface.)

• Vic Charter cases: This link has been on the blog for months and it’s how I keep up with all the local excitement here at Chaterblog. The search is of every Austlii case (thus picking up non-Victorian passing mentions) at every level, for the phrase ‘Charter of Human Rights’. (I leave off the ‘and Responsibilities’, because just about everyone does, although it means that I sometimes capture immigration cases on some similarly named UN document.) Note that, unlike South Australia, Queensland and Western Australia, Victoria does not make judgments from its intermediate court – the County Court – publicly available, a reprehensible policy that probably hides a lot of fascinating insights into what is going on in a major court for Charter matters. I’m yet to learn of a single County Court case that has cited the Charter, but I find it hard to believe that there haven’t been any.

I have no link for the ACT, as the ACT cases on Austlii are always hopelessly out-of-date – what is it about the Territories? – and the otherwise useful government website doesn’t allow links that embody searches. (If you want to search for recent cases, just go to here or here and type in “Human Rights Act” into the ‘content’ box.) But there’s no need for me to keep track of ACTHRA cases, as Gabrielle McKinnon seems to find out about them 9/16ths of a second after they’re announced.

The right to orgy

I wasn’t really expecting this to become a sex, planning and mental health blog, but what can I do? Today’s long expected decision upholding Max Mosley’s claim for breach of confidence against the venerable News of the World is a key example of a statutory human rights law having a transformative role on ordinary law and, through it, ordinary life. It’s possible that, with this case, the UK tabloids will reel back some of their most intrusive reporting on British celebrities. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 is a perfect example for Bob Carr and James Allan to use to criticise the horror of rights-crazed activist judges. Off you go! [EDIT: And now Allan has. Naturally, his column downplays the judge's finding that the NotW was wrong about the 'Nazi' claim, as such factual issues get in the way of Allan's agenda of portraying all human rights cases as exclusively about values. .]

Mosley’s celebrity status is (or, more accurately, was) due to his Presidency of the FIA, which runs Formula One racing (including Melbourne’s own Grand Prix? Beats me.) This, it seems, was reason enough (if a reason was needed) for NotW to expose Mosley’s penchant for S&M, complete with pun-laden front-page and inside-the-fold spreads (“THE PITS!”), photos (“TEA-TIME: Mosley after orgy) and, on its website, video footage of a couple of recent get-togethers (albeit with the naughty bits sensitively obscured by chequered flags.) Unsurprisingly, Eady J found that this engaged Mosely’s right to privacy under the ECHR, which is similar to Victoria’s Charter s. 13(a):

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

Eady found that sexual conduct in private is (or, in Mosley’s case, was) pretty damn private and that clandestine recordings are a pretty big interference. He rejected arguments that Mosley’s orgies weren’t so private, due to the involvement of multiple people, video cameras and money. He also noted that a NotW journalist’s subsequent threats to name other paid participants in the orgy unless they gave an interview was also a breach of their human rights (not to mention, most likely, the law on extortion.) The significance of this is that it brought Mosley’s claim within the modern human-rights-crazed British law of confidentiality, which now protects confidentiality even when there’s no pre-existing relationship between the claimant and the defendant. (It should be noted, though, that Eady also found that Mosley’s claim was also within old-style confidentiality law, due to his contract with the rogue hooker – woman E – who spilt the beans to NotW for £25,000.)

That wasn’t the end of the matter, of course, as NotW could rely on a human right of its (or, more precisely, its readers’) own, the ECHR equivalent to Charter s. 15(2):

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds…

The balancing of privacy and expression came down to whether there was a public interest in Mosley’s private practices. Eady quickly dispatched of NotW’s claims that Mosley’s parties needed to be outed for their criminality, depravity and adultery. (Mosley’s wife was the only one with a particular interest in the latter.) But NotW had another angle, both in its papers and in court: that Mosley’s parties were, NotW alleged, Nazi-themed. This fact gained some significance in Mosley’s case because, according to NotW, his family had Nazi links: indeed his parents were married at Goebbels’s place with Hitler as a guest of honour.

Alas, for NotW, Woman E didn’t testify at the hearing, so the paper had to rely on the video. Eady’s approach was to studiously compare the video (of an alleged concentration camp scenario) to actual life in a concentration camp. The role-playing failed to match-up, what with the ‘judicial scenario’ (Mosley was apparently in a concentration camp for crimes, rather than ethnicity); the English names for various players; and even the horizontally striped uniforms (whereas the real camps used less flattering vertical stripes.) There was, of course, the small matter that various conversations occurred in German (albeit with sexual, rather than genocidal, content) and that one of the women yelled out that she was ‘an Aryan blonde’ (although that followed another woman’s claim that “Brunettes rule!”, which doesn’t entirely capture the full philosophy of Mein Kampf.) But, as Eady sensibly pointed out, if Mosley had wanted a Nazi theme, then there were plenty of places in Britain where he could get actual Nazi costumes (as all royal followers well know.) The result: he got a tidy damages pay-out and NotW were also up for Mosley’s yooge legal fees. (NotW avoided exemplary damages, though, because Eady accepted that they really did think Mosely was a Nazi.)

So, does that mean that Victorian celebrity S&Mers can now orgy with peace of mind? Alas, no, due to the technical human rights issue of ‘horizontal effect’.

The Charter vs discrimination exemptions

Ever since the enactment of the Charter, Victoria has had two anti-discrimination laws. There’s this one:

8(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

And there’s also the Equal Opportunity Act 1995. They share a common definition of ‘discrimination’, but what else do they have in common? This question is the subject of two reviews of the EOA, one of its basic structure, the other of its exemptions. Of the exemptions, there are a slew of particular ones (like the sex and age exceptions to the rule against discrimination in sport) but also one general one:

83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…..

Late last year, businesses involved in defence contracting gained renewals of their exemptions from the ban on nationality discrimination, on the basis of the need to comply with US regulations barring contractors who receive some information from giving it to people of other nationalities (including, as it turns out, people with dual nationalities.) The timing for these three-year exemptions – weeks before the full operation of the Charter – was interesting. Judge Harbison certainly noticed it:

I have advised the Applicants that on the next occasion that an application for exemption is made, the provisions of the Victorian Charter of Human Rights and Responsibilities Act 2006 will be operative. By reason of this Act, the Tribunal in considering any further exemption application, will be required to interpret the relevant provisions of the Equal Opportunity Act in a way that is compatible with human rights, as those rights are defined in the Charter. International law and the judgments of domestic, foreign and international Courts and Tribunals relevant to a human right may all be considered when interpreting a statutory provision.

But what difference will the interpretation mandate make? Well, according to a decision that just came down from the ACT’s equivalent to VCAT, nothing.

The right to wardrobe malfunctions

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

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

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

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

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

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

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

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

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

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

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

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

The right to consent

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

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

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

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

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

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

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

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

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

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

An annoying argument

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

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

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

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

And that’s the second point:

The Charter in planning hearings

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

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

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

Note Corporations do not have human rights.

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

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

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

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

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

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

But Denton argued that the Charter had changed the rules:

Lynch’s bodgy evidence

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

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

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

Now, now.

Allan’s bodgy anecdote

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

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

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

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

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

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

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

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

The censor’s call

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

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

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

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

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

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

The right to review

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

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

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

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

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

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

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

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

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

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

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

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

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

Israel’s Charter

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

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

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

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

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

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

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

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

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

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

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

[EDIT: Two updates:

The Charter vs annoying laws

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

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

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

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

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

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

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

The retro Charter

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Charter vs eviction

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

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

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

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

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

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

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

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

But is Nihill right?