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.