The rights of slave-owners

In its last gasp, the Gleeson Court today gave a wide reading to a law aimed at furthering this right:

11(1) A person must not be held in slavery or servitude.
(2) A person must not be made to perform forced or compulsory labour.

Although The Queen v Tang [2008] HCA 39 was about events in Victoria, this was no Charter case but rather the application of federal criminal law. The court gave a broad reading to this definition:

270.1 For the purposes of this Division, slavery is the condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, including where such a condition results from a debt or contract made by the person.

The Court unanimously held that the ‘condition’ of slavery doesn’t require any de jure ownership of a person (which is impossible in Australia, and indeed most places), but rather de facto ownership. In particular, it was capable of covering the sitution in this case, where Thai prostitutes had their freedom of movement severely restricted by a combination of social isolation, fear of deportation, continual surveillance and an onerous debt to be paid off by prostitution. A similar reading would presumably be made of ‘slavery’ in Charter s. 11(1) (although the other terms of Charter s. 11 would presumably have filled any shortfall in that term.)

But the real interest of the case isn’t the definition of ‘slavery’ or ‘slave’, but rather the definition of a slave-’owner’. Under Commonwealth law, that depends on this criminal offence:

270.3 (1) A person who, whether within or outside Australia, intentionally: (a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership… is guilty of an offence.
Penalty: Imprisonment for 25 years.

Wei Tang, the owner of a Fitzroy brothel, Club 417, was found by a jury to have either possessed or used five prostitutes, in the case of four by virtue of her ownership of a share of the debt each was considered to owe to the smugglers who brought them to Australia, and in the case of the fifth by her use of her as a worker at her brothel (although her debt was owned by others.)

So, Tang did things that brought her within the definition of a slave-owner. But did she have the mind of a slave owner? The jury weren’t sure, asking two questions of the trial judge:

Does the defendant have to have known what the definition of a slave is ‘to intentionally possess a slave’ as stated in the indictment?

This has an easy answer: no. Criminal responsibility isn’t a matter of how the law is going to characterise partiular facts, but rather knowing what those facts are. The jury’s second question was:

To intentionally possess a slave is it necessary for the accused to have knowledge that her actions amount to slavery? or Is it sufficient that the accused only have knowledge of the conditions she has imposed (ie slavery has not entered her mind) and the law has decided those conditions amount to slavery.

This question is different to the last one, because it’s about Tang’s conduct, rather than about things external to Tang (like the characteristics of the prostitutes in her brothel.) Nevertheless, you might think that it has the same answer as the last one – that Tang doesn’t have to know how the law would characterise her actions, just what her actions are – and you’d be right. But the jury’s question touched on a tricky issue about criminal responsibility: that our responsibility for our conduct is not just a matter of awareness of facts, but of intention. (And, can I just say, boy this is a sharp jury!)

The Criminal Code defines intention as follows:

5.2(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

The Victorian Court of Appeal held that Tang’s conviction couldn’t stand, because the jury were only told to assess Tang’s awareness of facts, but not what she meant by her actions. The Court of Appeal said that the jury should have been told:

[T]he Crown must prove that in exercising the relevant power over a particular complainant (that is, possessing or using the complainant) the accused was treating that complainant as though she was property, as if she owned her, as if she could do with her whatever she chose to do. You must be satisfied that the accused was intentionally exercising a power that an owner would have over property and was doing so with the knowledge or in the belief that the complainant was no more than mere property.

If it is reasonably possible that the accused acted to possess or to use the complainant with the knowledge or in the belief that she was exercising her rights and entitlements as her employer or contractor and not in the belief that the complainant had no rights or free will, but was property, a thing, over whom she could exercise power as though she owned her then, however exploitative and unfair you may think her treatment of the complainant was, it would not constitute the offences of intentionally possessing or using a slave.

Clearly, this direction would have involved, not only Tang’s sensory perceptions of what she was doing, but her attitude towards it. Was she thinking like a slave-owner?

In today’s judgment, the High Court re-instated Tang’s conviction, rejected the Court of Appeal’s argument and effectively ruled that anyone who knew that a person was a slave could be a slave-owner, by virtue only of their actions, and not their attitudes.

Charter s. 35 in practice

I’ve just noticed that, ten days ago, the Supreme Court issued a practice note on the operation of Charter s. 35:

35(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if- (a) in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or (b) in any case, a question is referred to the Supreme Court under section 33.

The note is exclusively concerned with timing issues, which Charter s. 35 is silent on. The note notes:

Neither the Charter nor the Regulations set out specific requirements as to when notice is to be given or when the Attorney-General and the Commission are to indicate whether they intend to intervene in a proceeding. The Court is concerned to ensure that, where required, parties comply with section 35 at the earliest opportunity to avoid delays and the wastage of costs which could occur as a result of late compliance. The Court’s expectations of practitioners in this regard are set out below.

Actually, Charter s. 35 doesn’t set out any consequences of late or non-compliance at all and it seems to me that some consideration should be given to the possibility that there are no consequences. While I imagine there’s a strong argument that the purpose of Charter s. 35 is to facilitate the intervention powers in Charter ss. 34 and 41 given respectively to the A-G and VEOHRC, isn’t there a strong counter-argument that creating barriers to the ad hoc raising of the Charter’s interpretative and conduct mandates as a routine matter in litigation is at odds with the human rights culture the Charter is supposed to foster? (My fears here are heightened by unfortunate examples where Charter s. 35 has resulted in the dropping of otherwise quite plausible Charter arguments.) Drawing an analogy between Charter s. 35 and s. 78B of the Judiciary Act (which requires notice to every A-G in the continent on constitutional matters) isn’t apt: the Constitution’s subject-matter is much narrower than the Charter and its legal effect (including invalidity of legislation) is much broader. (Alas, the Court of Appeal has no qualms about using s. 78B to block Charter arguments, even in urgent matters.) For what it’s worth, the note observe that:

Whether service of a notice in close proximity to a hearing or trial necessitates an adjournment will be a matter for the Judge or Master hearing the proceeding.

On the question of timing, the note lays down the following ‘expectations of practitioners’, with non-compliance to ‘be taken into account, where relevant, in relation to the question of costs’:

First, the note notes that the A-G and VEOHRC say that their ‘expected response time’ is 14 days. There’s no further commentary, so the implication is that the Court either backs that estimate or feels that it has to defer to it. I’m no practitioner, so I can’t judge whether or not a fortnight is a reasonable response time and whether or not litigants can reasonably be expected to pick up and formulate their Charter arguments that distance from a trial.

Second, the note also requires that the court and other parties be given the notice at the same time, even though that requirement isn’t in Charter s. 35. This is to ‘ensure that it and other parties to proceedings are informed in a timely fashion of Charter issues arising in a proceeding’. It’s not clear to me why a special rule is needed beyond the usual ones that allow parties to be informed of each others’ arguments. (My bleary memories of civil procedure touch on the word ‘pleadings’.) And why is the Court so keen to know in advance whether or not there’s a Charter issue looming? Aren’t all the judges on top of the statute by now?

But there’s more:

Britain learns from Victoria

Victoria’s Charter clearly owes more to Britain’s Human Rights Act than any other (domestic) rights document. So, it’s interesting that Britain is looking to Victoria in its examination of whether it should introduce a new British Bill of Rights. The UK Joint Committee on Human Rights recently issued a report on its preferred model, which included the following references to Victoria:

• The report cited Victoria (alongside other Australian jurisdictions) as a rebuttal of the claim that a bill of rights can only emerge following a crisis (like the American or French Revolutions, or Apartheid.) The Australian statutes are actually no evidence of this, as the rights they protect (like the UK’s own Human Rights Act) are almost exclusively drawn from international treaties that were developed in the aftermath of World War Two. Canada, also cited by the Report, is a better example (although it did come in the midst of the Quebec seccessionist crisis.)
• The report endorsed Victoria’s approach of placing ‘the legislature central to the process of human rights protection’. The JCHR’s skeleton draft bill indeed copies Charter s. 28′s requirement that the government issue a detailed statement of compatibility stating how a bill is compatible with human rights (which it noted was inspired by the JCHR’s own experience.) Its version of Charter s. 28 is enhanced by a requirement for a human rights ‘impact statement’ and the extension of the requirement to statutory instruments and orders in council. On the other hand, the draft bill contains no provision equivalent to Charter s. 30 requiring a JCHR report on each bill, presumably reflecting its own decision not to provide a comprehensive scrutiny function.
• The report endorsed Victoria’s requirement in Chater s. 37 that the government make a formal response to Parliament in the event of a declaration of incompatibility. However, its draft expands on the requirement, setting a three month deadline for an initial response, a six month deadline for a remedial response, a requirement for a parliamentary motion in response to both statements and a power for a court to judge the remedial action. Needless to say, the JCHR draft doesn’t use Victoria’s dreadful ‘declaration of inconsistent interpretation’ terminology.
• The report adopted Victoria’s requirement of statutory reviews, replacing the four-year and eight-year reviews by the Attorney-General mandated by Charter ss. 44 and 45 with a single five-year review performed by an ‘independent panel’.
• The report wholeheartedly endorsed the consultative process that led to the adoption of Victoria’s Charter, ‘in particular its focus on public engagement’.

All up, a very positive verdict on the Charter. That being said, the JCHR folks seem to follow the ‘if you don’t have anything nice to say, don’t say it’ approach, at least as regards comparative lessons of the negative variety. Notably, the JCHR wholly rejected the government’s proposal for a British Bill of Rights and Duties: (BORAD!)

Comparative leaking

The ACT’s Charter (the much-better-named Human Rights Act 2004) got a passing mention in R v Tjanara Goreng-Goreng [2008] ACTSC 74. I usually don’t cover ACT cases (as ACTHRA does all that) but this one is on basically the same criminal offence as a Charter-related case, DPP v Zierk (blogged on here.)  Zierk involved a Victoria Police officer who leaked non-secret police manuals on speeding to an ex-officer, whereas the ACT case involved a federal public servant accused of telling the subject of a complaint about the details of the complaint (in a chain of events that contributed to the NT intervention.) So, unlike the Victoria Police disclosure offence, the ACT case involved a federal offence:

70(1) A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.

Interestingly, though, both offences follow the same form, which is a common form across Australia that (apparently) originated in Victoria in the mid-nineteenth century. And both cases involved an assessment of documents thought to define the duty of non-disclosure. What is especially interesting (and something I was unaware of) is that there was an earlier federal court judgment in 2003 on the compatibility of the regs defining the duty of non-disclosure for federal public servants with the Constitution’s freedom of political communication.

So, there are now three cases, from three different Australian courts, on a common rights issue: the extent to which a public servant’s freedom of expression (in the form of leaking) can be limited by laws promoting the state’s interest in the confidentiality of its administrative workings. Here are three quotes from each of the three cases:

Irrespective of whether there was a duty not to disclose, the respondent was not authorised to release the information… [A]ll organisations, must keep some material confidential. That confidentiality will not always, and perhaps rarely, be overridden by the unauthorised person’s ‘right to freedom of expression’.

[W]hatever may have been acceptable in the past… the State’s interests do not override as of course any other legitimate interest of the public servant with which they conflict… However, it equally has been well recognised that such other legitimate interests… similarly do not override the State’s interest in regulating its officers and employees.

If one accepts, as I do,… that government as an employer has a legitimate interest in preventing disclosures that would or might interfere with their effective operations, the question is not that one starts with a preference for disclosure, but rather how does one determine the limits.

The order here is (what I judge) as the most restrictive view on freedom of expression to the least restrictive. The last two are pretty close, while the first one – with its  view that freedom of expression ‘perhaps rarely’ overrides confidentiality – clearly strikes the relevant balance squarely in favour of confidentiality and against freedom of expression.

So, it’s sad, isn’t it, that the most restrictive quote is Warren CJ’s dictra in Zierk of the Charter’s role in such cases, while the less restrictive quotes concern non-HRA/Charter cases, including one that preceded both statutes? 

The Charter vs. Charter s. 48

For obvious reasons, Charter s. 48 – the Charter’s savings provision for abortion and child destruction laws – is very much on my mind. Beyond bland quoting of published views, I won’t be commenting here on exactly how Charter s. 48 interacts with the Abortion Law Refom Bill 2008.

But there’s one Victorian law about abortion that the Bill leaves untouched. It’s this one:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

So, here’s a puzzle: does the Charter apply to Charter s. 48? In particular, could someone seek a declaration of inconsistent interpretation about Charter s. 48?

The phrase ‘law applicable to abortion or child destruction’ appears to cover Charter s. 48 itself. That would seem to imply that the Charter (including Charter s. 36, the declaration section) doesn’t affect Charter s. 48. But the problem is that the phrase ‘in this Charter’ surely also covers Charter s. 48, which is obviously in the Charter. That means that, by the terms of Charter s. 48, Charter s. 48 is ‘saved’ from… Charter s.48. And that means that the exemption of effects of the Charter (whatever they are) from abortion laws doesn’t extend to Charter s. 48. And that means that the Charter (including Charter s. 36) do affect Charter s. 48. But so does Charter s. 48. Which means that the Charter doesn’t affect Charter s. 48. Which means that Charter s. 48 doesn’t affect Charter s. 48. Which means that the Charter does affect Charter s. 48….

And so on. In short, Charter s. 48 basically has the following form: “This Act doesn’t apply to this section.” The dreaded self-referential law! Indeed, it’s a self-contradicting law. That’s the worst sort!! Perhaps my  double degree in theoretical maths and law will be useful at last. If only I remembered any of the maths! What is the set of all sets that don’t include themselves? (I always got that one wrong in the exam!) And where’s my copy of Gödel Escher Bach?

Um, maybe it’s best if Charter s. 48 isn‘t a law applicable to abortion or child destruction’. For example, I guess you could argue that Charter s. 48 is really a law applicable to laws applicable to abortion or child destruction, which isn’t the same thing as a law applicable to abortion, etc. So, Charter s. 48 wouldn’t be self-referential anymore. That’d be a relief! Or would it?

Un-Chartered abortion

Yesterday was a landmark day in Australian abortion law, with a government bill going before Parliament for the decriminalisation of abortion. However, it is also a landmark in Charter practice, as this is the first bill since 1/1/7 that goes to parliament without a statement of compatibility. The reason is this provision:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

In the Charter’s Second Reading Speech, Attorney-General Hulls said:

The right to life is a key civil and political right and is protected by the bill. As the provision is not intended to affect abortion laws, a clause is included to put beyond doubt that nothing in the charter affects the law in relation to abortion or the related offence of child destruction. The government is mindful of the range of strong community views on this issue and has never intended the charter, which is aimed at enshrining the generally accepted core civil and political rights, to be used as a vehicle to attempt to change the law in relation to abortion.

In her Second Reading Speech for the Abortion Law Reform Bill 2008, Minister Morand said:

In accordance with section 48 of the Charter of Human Rights and Responsibilities, a statement of compatibility for the Abortion Law Reform Bill 2008 is not required. The effect of section 48 is that none of the provisions of the charter affect the bill. This includes the requirement under section 28 of the charter to prepare and table a compatibility statement, and the obligation under section 32 of the charter to interpret statutory provisions compatibly with human rights under the charter.

A private member’s bill decriminalising abortion tabled last year included a statement of compatibility, which said:

This bill does not raise any human rights issues. The charter protects and promotes the human rights of ‘persons’, or ‘human beings’, regarded under Victorian law as existing from the time a child is born alive and exists separate from, and independent, of their mother. The charter does not disturb this well-established legal position and expressly provides that the provisions of the charter do not affect the law applicable to unlawful abortion the subject of the bill (section 48 of the charter).

For my earlier post critiquing the drafting of Charter s. 48, see here.

Rights dialogue on regulations

The Charter follows the much vaunted dialogue model when it comes to statutes, including mechanisms for pre-enactment dialogue, such as statements of compatibility and SARC reports. A unique feature of the Charter is that this dialogue also extends to regulations, by virtue of one of the Charter’s consequential amendments to the Subordinate Legislation Act 1994. The two mechanisms for this dialogue are Human Rights Certificates:

12A(1) The responsible Minister must ensure that a human rights certificate is prepared in respect of a proposed statutory rule, unless the proposed statutory rule is exempted under subsection (3).

and a new head of review for SARC in its regulation review function:

21(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament-… (ha) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities…

Alas, this dialogue lacks the transparency of the parliamentary dialogue. Human Rights Certificates (like the many other statements and certificates produced in respect of regulations) aren’t published at large (although the various documents may be circulated as part of consultations on regulations.) And SARC has not issued any reports under s. 21(1)(ha) (or, indeed, at all.)

However, one public document was tabled in Parliament this week: SARC’s Annual Review of its reporting function on regulations for 2007 (the first year of the Charter’s operation.) It contains 13 pages on the Charter-related aspects of SARC’s regulation work including six examples covering  five occassions in 2007 when SARC correpsonded with the relevant Minister about a Charter issue:

SARC on prisoners’ civil claims

The Victorian Parliament is currently considering a bill to quarantine (for twleve months) the money prisoners receive from the state pursuant to claims for civil wrongs. The Second Reading Speech explained the purpose of the Bill as follows:

The government intends to address the situation where an offender receives an award of damages from the state and therefore has a much improved financial situation. Victims can then choose to take advantage of that improved financial situation by taking their own legal action in the knowledge that there are assets that may satisfy a successful judgement. The government is aware of the perceived inequity when offenders are seen to use the law for their own purposes through pursuing compensation arising from their circumstances in custody. This bill represents a step in addressing that inequity.

The Bill has its origins in a political debate in New Zealand about claims being made under its Bill of Rights Act (which, in contrast to the Charter, creates both a  cause of action for breach of human rights and a remedy of damages.) Challenges to the NZ Act have to date failed on procedural grounds.

The Human Rights Law Resources Centre made a lengthy submission to SARC on the Bill:

The Centre has grave concerns about the impact that the Bill would have on the following human rights. The rights listed below are protected under the Charter at the sections indicated.

(a) The right to recognition and equality before the law (section 8).

(b) The right to privacy and reputation (section 13).

(c) The right to protection of families and children (section 17).

(d) Property rights (section 20).

(e) The right to humane treatment when deprived of liberty (section 22).

(f) The right to fair hearing, including the right to equal access to courts (section 24).

(g) The right to an effective remedy (which is fundamental to the protection of all human rights).

…The Centre considers the premise of the Bill to be incompatible with the human rights outlined above… , which are rights that the Victorian government commendably seeks to protect and promote in the Charter. As such, the Centre recommends that the Bill be withdrawn in its entirety.

SARC’s own report on the Bill was tabled in Parliament today. It focuses on a section that requires the fact that a named prisoner has been successful in a claim to be advertised in Victorian and national newspapers:

The Committee observes that the information contained in the notice – that the prisoner has been a victim of a civil wrong committed by the state and is the recipient of an award of more than $10,000 – is potentially sensitive information, particularly given the vulnerabilities of many prisoners. The Committee also observes that this requirement is a mandatory one regardless of the circumstances and, in particular, overrides any confidentiality clause contained in an agreement between the state and the prisoner (see new section 104ZB.) The Committee therefore considers that new section 104Y may engage prisoners’ Charter right against arbitrary interferences in their privacy.

The Committee was also concerned that the requirement may override contrary court orders and laws.

SARC’s report also raises Charter concerns about the exemption of some offenders from the new County Court Koori division and the reverse onus defence of due diligence in an offence relating to factory openings on ANZAC Day.

The Charter vs tenants

I’ve previously blogged about a secondary account of PILCH’s use of the Charter to (successfully) prevent the eviction of tenants by Victorian public authorities (or, at least, arguable public authorities.) The PILCH Homeless Person Legal Clinic relied primarily on this right:

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

While not doubting the HPLC’s good motivations, I was dubious about its legal arguments and a new House of Lords case underlines those doubts, as well as giving some long-overdue attention to a crucial operational provision of non-entrenched human rights statutes.

The recent UK House of Lords judgment, Doherty  v Birmingham City Council [2008] UKHL 57, is the UK top court’s third go at trying to sort out the tricky relationship between tenancy law and human rights law.  The issue, in Victoria and the UK, is eviction without cause, permitted in Victoria by s. 263(1) of the Residential Tenancies Act 1997 (albeit only with 120 days notice.) In the UK, many public tenants are protected from eviction without cause , but that protection does not extend to caravan sites, where a lesser protection regime only covers privately owned cites. This situation is hard on gypsies, who are often long-term residents of publicly owned sites and, indeed, were singled out for exclusion from a second protective scheme for mobile home tenants.Responding to a 2004 ECtHR case that criticised the exemption of gypsies, the UK Parliament has since repealed both limitations on protections for tenants of caravan stites, but that came too late for the litigants in Doherty, who face eviction by a local authority that regarded the long-term presence of a gypsy family as an impediment to its planned redevelopment of its caravan site.

As I’ve previously blogged, Bob Carr has been bandying about hearsay claims that UK landlords are now too scared to evict gypsy ‘trespassers’, a tale that not only panders to racists but ignores the limitation of the UK’s legal debate to publicly owned land and to lawful (indeed long-term) tenants. Even within these limitations, UK law still protects landlords, not tenants. Initially, the House of Lords rejected the idea that eviction raised any human rights issues at all; public authorities, they held, like private landlords, were allowed to evict tenants at the end of their lease. Rebuffed by the ECtHR in the case of the gypsies, the House of Lords set out two avenues for tenants to complain to courts: by seeking common law judicial review of the decision of public authorities; and by attacking the eviction statute using either the interpretation mandate or a declaration of incompatibility (the latter course at least giving the tenants a temporary respite from eviction.)

I’m not sure whether public housing authorities in Victoria are amenable to ordinary adminstrative law, but the HPLC certainly tried to rely on the interpretation mandate to protect tenants from eviction into homelessness:

[F]ollowing the entry into force of the Charter, landlords are now obliged to interpret their rights under the RTA in a way which is compatible with the Charter (s 32(1)). In this case, the landlord had not provided any reasons for the eviction nor provided the tenant with an opportunity to address its concerns. Relying on Ghaidan v Godin-Mendoza, the HPLC submitted that VCAT read in to s 263 the italicised words: ‘A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice, if reasonable to do so in the circumstances and if to do so is compatible with the Charter.’

I’ve previously argued that Ghaidan may be a poor authority for Victoria’s Charter, even putting aside the express limitation on Charter s. 32 to interpretations consistent with the purpose of a statutory provision. Doherty suggests that even a UK-style mandate would not achieve the result asserted by PILCH:

Section 3(1) HRA provides that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights. But the exclusions from protection that are to be found in these statutes are not susceptible to interpretation in a way that would remove the incompatibility. Giving effect to them is unavoidable… As has often been said, section 3(1) provides the court with a powerful tool to enable it to interpret legislation and give effect to it. But it does not enable the court to change the substance of a provision from one where it says one thing into one that says the opposite.

While Lord Hope was willing to issue a declaration of incompatibility about the UK statutes, the remaining lords declined, citing both the repeal of the laws and doubts about whether or not blame could be sheeted to those particular statutes, rather than the wider legal system of English law when it comes to tenancy.

That leaves the conduct mandate

The ALRC vs the Charter

Today brings the release of a truly mammoth three volume report from the Australian Law Reform Commission on privacy protection in Australia. While much of the report is directed to the intricacies of existing privacy legislation and related statutes, the highlight is a dramatic proposal for a new statutory cause of action:

Recommendation 74–1 Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where: (a) there has been an interference with an individual’s home or family life; (b) an individual has been subjected to unauthorised surveillance; (c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or (d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2 Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances: (a) there is a reasonable expectation of privacy; and (b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Recommendation 74–3 Federal legislation should provide that an action for a serious invasion of privacy: (a) may only be brought by natural persons; (b) is actionable without proof of damage; and (c) is restricted to intentional or reckless acts on the part of the respondent.

Recommendation 74–4 The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the: (a) act or conduct was incidental to the exercise of a lawful right of defence of person or property; (b) act or conduct was required or authorised by or under law; or (c) publication of the information was, under the law of defamation, privileged.

Recommendation 74–5 To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following: (a) damages, including aggravated damages, but not exemplary damages; (b) an account of profits; (c) an injunction; (d) an order requiring the respondent to apologise to the claimant; (e) a correction order; (f) an order for the delivery up and destruction of material; and (g) a declaration.

This is an exciting proposal, although whether it has a chance of being adopted I have no idea.

What is quite disappointing, though, is that the ALRC’s lengthy report virtually ignores the Charter and (especially) the ACT’s Human Rights Act. The report duly notes that Victoria has a Charter, including both an interpretation mandate and a conduct mandate, but contains no analysis of the possible use of the conduct mandate as a remedy against invasions of privacy (Charter s. 39(1) would probably greatly limit the remedies available for a breach of privacy by a public authority.) More disturbingly, its brief discussion of the ACT Human Rights Act addresses only its interpretation mandate, ignoring the new conduct mandate that will commence next year, which notably empowers ACT courts to provide appropriate remedies (other than damages) for breaches of the conduct mandate, including breaches of privacy. No reference is made to the human rights consultations in Tas or WA, or the proposed federal consultation. (Indeed, the Report’s summary of existing Federal law doesn’t even mention the Human Rights (Sexual Privacy) Act 1994! Extraordinary.)

While the protections offered by the Charter and ACTHRA are limited in many ways (notably not providing protection from invasions by private individuals or entities), it seems to me that they ought not to be ignored or give only passing mentions in a report that is seeking to make significant changes to how Australians’ right to privacy is protected.

Property rights in the County Court

A new Supreme Court case, DPP v Nguyen & Anor; DPP v Duncan & Anor [2008] VSC 292, doesn’t actually apply the Charter itself but reveals that the Charter was applied earlier this year in the County Court. Once again, let me note the unfortunate fact that Victoria is the ONLY Australian jurisdiction that doesn’t make the judgments of its intermediate court publicly available online. (Qld‘s, SA‘s and WA‘s are on Austlii. NSW‘s is on Lawlink. ACT, NT and Tas don’t have intermediate courts.) It’s true that a random selection of VCC cases are available on the VCC website, but it’s also clear that numerous significant judgments aren’t there, including the one mentioned in this case. It’s an appalling situation. Michael Rozenes, what are you doing?

What’s especially interesting is that this VCC case applied one of the Charter’s weirdest rights:

20 A person must not be deprived of his or her property other than in accordance with law.

This right is weird because it isn’t in the ICCPR. It’s also weird because it seems to simply give a right against unlawful behaviour (which surely goes without saying.) However, as it turns out, the right may well do more than that.

The VCC case is another one concerning Victoria’s horribly drafted confiscation law. Unlike the previous VSC case on that law, this one concerned the more straightforward situation where a person is charged, a restraining order is placed on their property and then they are convicted. Or, at least, it should be straightforward. Here’s the relevant provision:

35(1) If-

(a) a person is convicted of a Schedule 2 offence; and

(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on- (i) the defendant’s conviction of that offence; or (ii) the charging or proposed charging of the defendant with that offence or a related offence that is a Schedule 2 offence; and

(c) the restrained property is not the subject of an exclusion order under section 22-

the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after- (d) the making of the restraining order; or (e) the defendant’s conviction- whichever is later.

The complication is that it can be hard to work out what day a person was convicted. In the case of the two defendants in these cases, the matters were continually listed and relisted for hearing and, in the course of one of the hearings, the defendant announced that he would enter a guilty plea. The listing judge – who wouldn’t have known that was coming – noted the guilty plea and then adjourned the matter for sentencing. And, in each case, the defendant remained on bail until the sentencing matter came up.

At issue in each case was the question of whether the conviction occured when the guilty plea was made or at some later point, such as when the defendants were sentenced. This mattered because each defendant applied for an exclusion order, protecting the property from forfeiture, at a point that was more than 60 days after the guilty plea but less than sixty days after the sentence. The OPP’s confiscation squad (who pursue these matters like each of them will individually get a cut of the proceeds – surely not?) argued that conviction happened at guilty plea, thus avoiding any need for a court to work out if the property really ought to be forfeited or not. Indeed, there was another temporal confusion in one case because of the gap between the lodging of the application (within the 60 day limit on any view) and the hearing of it (outside of the limit on the OPP’s view of things.) Why the delay between lodgment and hearing should work against the applicant is beyond me, but their argument, turning on a since repealed County Court rule (model litigants my arse!), didn’t have to be dealt with.

Anyway, the courts gave short shrift to the OPP’s arguments. The OPP rested a lot of its argument on the fact that each of the listing judges responded to the guilty plea by getting their associates to give the defendants the ‘allocutus’ (a bizarre latin jargon for saying to the defendants “You have pled guilty. Do you have anything more you want to say?”, a practice that is itself a vestige of quaint old times when sentences were brought down moments after convictions.) But the courts noted that a finding that a conviction occured then and there was at odds with the adminsitrative nature of the hearing and the fact that, not only was neither defendant immediately punished, but they were each left on bail. From a policy basis, Smith J was decidely unimpressed with the OPP’s stance that all this bluriness should be resolved in its favour:

The legal approach suggested for the DPP, in my view, involves a significant change to the law. It would give preference to form over substance and introduce uncertainty and arbitrary outcomes. In the present case there was certainty with the remanding of the defendants for sentence after the hearing of the plea. What the DPP was seeking was “certainty” at the earliest time possible. A disadvantage to the DPP that flows from the alleged “uncertainty” is that he will have to argue the applications for extension orders on their merits. I assume that is not a matter of concern.

And it’s here that Charter s. 20 seems to matter. Justice Smith tells us that McInnery J, the County Court judge in both cases, referred to the Charter in determining that the OPP’s argument should be rejected:

His Honour also noted the relevance in interpreting a statutory provision of s.32 of the Charter of Human Rights and Responsibilities Act 2006, referring to the relevant human right being that spelt out in s.20, that a person must not be deprived of his or her property other than in accordance with law.

Frustratingly, without access to the VCC judgment, it’s hard to know what this means and if it was anything other than a passing reference. It might be thought that McInnery J was taking a fairly naive approach that equates Charter ss. 20 & 32 with a right to strict interpretation of statutes that remove property rights. I don’t think the narrow terms of Charter s. 20 necessarily require such an approach.

However, it may well be that McInnery J had a more subtle argument in mind

Innocence and discipline in NZ

A recent judgment of the NZ Supreme Court, Z v Dental Complaints Association [2008] NZSC 55, looks at the vexed question of the overlap between criminal investigations and professional discipline, which is also coming before the Victorian courts. In contrast to Victorian case (where a doctor is being disciplined after being charged but not before being tried on rape charges), the NZ case concerns a dentist who is being disciplined after being acquitted of indecent assault charges. As I posted in relation to the Victorian case, I think that such cases raise some interesting rights issues concerning the presumption of innocence. Indeed, while I don’t think a ‘risk’-based discipline proceeding is a breach of the presumption of innocence of someone who is yet to be tried, there is some European authority for the view that the rules get much tighter if someone is acquitted (although Charter s. 38(2) would presumably provide cover for such a process here and Charter s. 7(2) may well protect an authorising statute from a declaration too.)

So, I was quite disappointed to see that the presumption of innocence was not discussed in the NZ case. The majority focused exclusively on the questions of abuse of process and the appropriate standard of proof, while Elias CJ, in dissent, considered only the right against double jeopardy (and, even then, found that the proceedings didn’t contravene that right but clashed with its spirit.) However, when I looked to the relevant section of the NZBoRA, I saw the explanation:

25 Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) The right to a fair and public hearing by an independent and impartial court:

(b) The right to be tried without undue delay

(c) The right to be presumed innocent until proved guilty according to law:

(d) The right not to be compelled to be a witness or to confess guilt….

And so on. This is different in a subtle way from the Charter (and the ICCPR), which place the rights in para (a) and (c) in their own separate provisions. So, in particular, Charter s. 25 says:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her…

And so on. The crucial difference is that NZBoRA’s criminal trial rights (including the presumption of innocence) are limited to the determination of the charge (i.e. the trial), whereas the Charter’s process rights aren’t so limited (and, in particular, can readily pick up the ECtHR jurisprudence on the non-trial aspects of the presumption of innocence.)

It’s true that Charter s. 25 has the heading ‘rights in criminal proceedings’, but I don’t think a short title can – or at least ought to – have the effect of narrowing down the scope of Charter rights. In particular, doing so in the case of the presumption of innocence is unjustified in light of the wording of the ICCPR right:

14.2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing…

And so on. Under the ICCPR, it’s clear that the presumption isn’t limited to the determination of criminal charges.

I’m not sure why the NZ folks added in the limitation. Maybe they thought it looked neater? Anyway, the moral of the story is to be cautious about NZ precedents on criminal process rights. The Victorian judge who gets to hear Dr Sabet’s Charter challenge will have to look elsewhere than the NZSC, despite its recent judgment on the very clash of systems that Sabet’s case is concerned wtih.

Dennis Ferguson’s pretend fair trial

The Queensland Court of Appeal today overturned District Court judge Hugh Bottling’s ruling that Dennis Ferguson couldn’t receive a fair trial on sexual assault charges relating to an incident in 2005. Bottling, after examining the publicity about Ferguson in the Queensland press, held:

My judgment is, therefore, that the accused cannot have a ‘fair’ trial in respect of this charge because I think it improbable that a jury can be empanelled, all of whom would be able to be dispassionate and follow the judge’s directions. To pretend otherwise would, I think, be disingenuous.

Alas, Queensland’s top court has ruled that disingenuity is mandatory in this part of Queensland’s legal system:

[W]e consider that the primary judge’s conclusion that it was “improbable that a jury can be empanelled, all of whom would be able to be dispassionate and follow the judge’s directions” underrates the average citizen’s sense of fairness in the context of the other considerations discussed above. As our discussion of the authorities shows, juries are expected to discharge their duties properly even after sensationalised and prejudicial media reporting of quite horrific crimes. That expectation is informed, both by the necessity to accept, if jury trials are to be maintained, that jurors will be true to their oaths and follow the trial judge’s directions, and the justified confidence that jurors do routinely meet that necessity.

In short, judges are obliged to make some factual assumptions about jurors in order to maintain confidence in the jury trial system. Justice Bottling’s error in deciding that the jury (or at least some of them) wouldn’t be able to act impartially in Ferguson’s case was that he made factual findings that would undermine the jury system. His findings weren’t factually incorrect, but instead legally forbidden. (The Court of Appeal tellingly provides no reasons for its ‘justified confidence’ that its assumptions are correct. Apparently, we can safely assume that this sort of thing never happens, unless it happens.)

Indeed, the Court held, Bottling’s fact-finding contradicted a Queensland statute, its Jury Act:

50 The members of the jury must be sworn to give a true verdict, according to the evidence, on the issues to be tried, and not to disclose anything about the jury’s deliberations except as allowed or required by law.

69A(1) A person who has been sworn as a juror in a criminal trial must not inquire about the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge.

Maximum penalty–2 years imprisonment.

Commenting on these provisions, the Court held:

A court asked to grant a permanent stay of proceedings on indictment should not proceed on the basis of speculation that jurors might, not only disregard their oath to render a verdict based only on the evidence, but also commit an offence in order to do so.

So, a bill presently before Victoria’s parliament to create a similar criminal offence, will not increase the protection for defendants’ Charter right to a fair trial, as the bill’s statement of compatibility claims, but instead decreased it, by requiring Victorian courts to put out of their mind the possibility that the jury will make inquiries that they shouldn’t make.

Alas, the Court failed to pick up a key bit of Bottling’s reasoning, that could have avoided all this embarrassment about generic confidence in the jury system:

Bearing in mind the extraordinary nature of the public comment in this case, the fact that it is virtually entirely adverse to the accused, that it varies between rational statements and vitriolic attacks, that the press publicity has been compounded by film shown on television, and that the Crown case is so very weak, I have formed the view that the accused cannot receive a fair trial and that were the trial to proceed there would be a real prospect of a miscarriage of justice.

As previously posted, Bottling didn’t rule that Ferguson could never receive a fair trial for any offence; he ruled that Ferguson couldn’t receive a fair trial for the particular offences he was charged with, because the evidence was so weak (consisting of one child’s vague statement that Ferguson did ‘something to me right here in my little bum’, pointing at her waist, in an interview, much of which was inaudible and where she later contradicted that evidence by identifying the other person in the room as the culprit.) The jury’s ability to assess evidence dispassionately isn’t something you assess in the abstract (e.g. by reference to the oath they swear) but in relation to the very evidence they’ll have to consider. The Court of Appeal not only missed this crucial point but ruled that it was forbidden too:

[I]t is no part of the function of a judge to pre-empt the decision of the jury on the question of the guilt or innocence of the accused. It is one thing to stay proceedings on indictment, or, for that matter, to rule at the trial, that there is no case for the accused to answer, but it is another thing altogether to pre-empt the jury’s function because the Crown’s case is seen to be extremely weak.

Now, in fairness to the Court of Appeal, a lot of its reasoning focused on the provisions in the Jury Act that are designed (curiously, alongside the requirement to swear an oath to render an oath ‘according to the evidence’) to vet out dud jurors

The Charter vs Numbies

Hearne v Street [2008] HCA 36, decided yesterday, presses so many of my buttons. First, I have not the slightest sympathy for the plaintiffs, who moved into apartments overlooking Sydney’s Luna Park, gaining all the benefits of views of Sydney Harbour that were unblockable because the iconic park could never be built on, but then objecting (like the Millers in Lord Denning’s famous judgment on newcomers who ‘came to the nuisance’ of village cricket) that the re-opened park was too noisy. In that, I’m not that different from most Sydneysiders, doubtless inflamed by articles like this one:

The NUMBY* files – Why Luna Park’s neighbours aren’t smiling

DISRUPTED violin lessons, entrapped Chinese herbal medicine fumes and smoking daughters have been cited by residents as reasons why Luna Park should shut down rides. The Daily Telegraph has seen several affidavits filed in the Supreme Court by Milsons Point residents against the amusement park, which re-opened in April last year. Here is a summary of some of the residents’ affidavits, which make interesting reading. The court is likely to decide in July whether to grant the residents’ injunction order to close down five rides. Luna Park says this order, if granted, could cause it major financial pain.

KEVIN SEETO Kevin Seeto and wife Judith purchased their Milsons Point unit in The Cavill, in Cliff St, Milsons Point, in 2001. Mr Seeto said he assumed that Luna Park would only re-open with noise guidelines to protect local residents. Mr Seeto said he is “forced” out of his own home by the noise on weekends and also has a major cooking problem. The smell from Asian cooking prepared by himself and his wife stinks out the apartment and they can’t open balcony windows to release the fumes due to noise. “This problem of odours is worse when Judith boils up Chinese herbal medicine,” the affidavit reads. “I find the smells from the Chinese herbal medicines to be putrid.”

BERYL LESKE, OBE The renowned violin teacher bought her Peninsula Tower unit with husband Clemens in 1999. Ms Leske is unhappy about noise from the Ranger ride which she claims stops her using her balcony and affects her violin teaching, done in the apartment. “It is impossible to teach when in the background there is constant squealing … it completely breaks concentration for me and the student,” the affidavit by Ms Leske reads. “Part of my teaching involves teaching students to project their music to an imaginary audience in the distance, in my case to McMahons Point. “With the sliding door shut, the exercise simply loses all impact.”

PHILLIP CAVE Mr Cave, who has bought an apartment at 30 Glen St, said one of the park’s side-effects is that one of his daughters no longer visits. He said she was not allowed to smoke in the home but doesn’t like smoking on the terrace, due to the screaming from patrons. “If I can only smoke on the condition that I listen to the screaming, I would rather not come here at all,” the daughter allegedly said.

And so on. Snort. NUMBY is helpfully defined as “Not Under My Balcony, the city cousin of the NIMBY”. This article was the start of the matter that the High Court decided, because the press was given the affidavits by the defendants, who had obtained them as part of compulsory court process. This, it turns out, was a breach of the law.

And that’s my second button pressed: I’ve spent many year battling to get documents out of court files, continually stonewalled by court bureaucrats who think that court files are owned by either them or the parties (and who seem to have trouble finding them anyway, not to mention charging extortionate fees to search and photocopy.) This a dramatic contrast to other countries, notably the US, whose federal courts put all filed documents on the net for a nominal fee for anyone who wants to look at them. Without such access, the only scrutiny of court process that is possible is by either attending at court, paying a smallfortune for a transcript or reading what is said about the evidence in a court’s judgment. On the rare occasions I’ve gotten access to documents, I’ve invariably found that the latter misrepresents the evidence (e.g. the major High Court case, Fox v Percy, which overruled expert reports about accident causation in favour of ‘incontrovertible evidence’ of skid marks; my search discovered that that evidence was a single unscaled stick-figure diagram no bigger than my thumb, drawn in the dark on a dirt road by a police officer who had it in for the tattooed plaintiff.)  It’s no surprise that courts have no particular interest in exposing court files to scrutiny. In this case, the defendants had to hurriedly apologise for the article in the Tele and undertake not to release any more documents. Alas, two directors did release more documents to a NSW Minister and now have been found guilty of contempt.

And now for my third button: this aspect of the law on contempt (like other aspects) is a bit of the common law that demonstrates that any reference to the ‘genius’ of the law can only be sarcastic. In the middle of each of the last two centuries, English courts decided that documents obtained compulsorily as part of a litigation process come with a string attached: an ‘implied undertaking’ that the documents will only be used ‘for the proceedings’. Not only is this terminology inapt – the obligation arises whether or not any undertaken is given and applies to people (like the directors) regardless of whether they know of it – but the rule is bizarrely broad, covering not only genuinely compelled documents, confidential information,  broad publication and wholly unrelated uses but (as here) documents released through routine discovery, stating evidence intended to be put publicly at trial, disseminated privately (with an instruction not to quote publicly) and for a legitimate purpose of (successfully!) lobbying for political support (by defendants to litigation against the plaintiffs.) I’m no contempt expert, but I wonder whether the same rule applies in criminal matters, something that would have had terrible ramifications for Mohammed Haneef, who is free today because of the ‘leaking’ of an interview transcript that the police had to provide as part of pre-trial criminal process. As it happens, even the High Court had to concede that no-one really knows whether contempt is a criminal or civil matter (a distinction vital here as the defendants were initially acquitted, before that was overturned by the Court of Appeal), with the Court having to rely on a vague test that seeks to distinguish between remedial and punitive motivations on the part of the plaintiffs!

Fourth button: the High Court, which showed not to slightest interest in reforming this (or any other) crappy law, despite making it clear that it is the only judicial body in Australia that is permitted to do so. Justice Kirby basically begged the plaintiffs to both ask for a reformulation of the law and also to seek a specific defence for their particular disclosure (to a minister as part of a lobbying process for remedial legislation, i.e. a form of petition to parliament.) But, despite the apparent merit to these arguments – constitutional free speech, anyone? – the plaintiffs wouldn’t bite. It’s not hard to see their thinking, as they looked past Kirbs to the four Howard-appointed drones that made up the rest of the bench. Instead, they eschewed arguments based on policy, modernisation and human rights in favour of a technical argument about the distinction between express and implied undertakings. Now there’s a choice that evinces total contempt of court (albeit wholly deserved.) It didn’t pay off: in a judgment obviously written by Heydon – it’s just a series of put-downs of the defendants’ arguments and a brief lecture on the law (he should blog!) – the majority dismissed the technical argument (instead stating the law of contempt in the broadest imaginable terms) and knocked back the parliamentary point  with a nonsensical claim that petitioning is a vestige of an undemocratic franchise. (And see here for what Dyce thinks of the franchise!)

And that brings me to my fifth and final button, which is Charter-related (I always get there!):

The Charter vs DNA labs

Today brings this shocking, disappointing but unsurprising news:

Police have dropped murder charges against a man over the 1984 killing of a mother and her young daughter after DNA evidence on clothing related to the case was found to be contaminated. Homicide Squad detectives last month charged 43-year-old Victorian prisoner Russell Gesah over the deaths of Margaret Tapp, 35, and her nine-year-old daughter Seana. Their bodies were discovered in their Ferntree Gully home on August 8, 1984. Victoria Police said today that forensic officers had identified a possible contamination of the biological evidence after a laboratory review. The contamination occured in 1999 when clothing containing the DNA of Gesah – from an unrelated offence – was examined on the same day that clothing from the Tapp murder case was examined. Deputy Commissioner Simon Overland today defended the force’s DNA testing procedures, describing them as the “world’s best practice”

The reason this is unsurprising is that it happened before. In 2003, the coronial inquest into the notorious depth of Moe toddler, Jaiydn Leskie, was distracted by a DNA database match between Leskie’s clothes and a rape victim living in Western Melboure. After that victim (and her relatives) were investigated, the police realised that a condom from the rape was tested at the Victorian lab two days before Leskie’s clothes. While anyone can see (and, indeed, just about every expert who looked at the case did see) that this was a case of in-lab contamination, the lab itself maintained that contamination was impossible; instead, they maintained that this must have been a coincidental match (an opinion they rarely proffer in routine cases.) The coroner despite concluding that there was in-lab contamination, said that the DNA system remains untarnished.

[EDIT: Indeed, I forgot that I gave an interview on Stateline in 2006 on contamination that reads quite nicely now. Watch Stateline tomorrow (Victorians) to see my spiffy corner office and me feigning an interest in a doorstopper called 'Forensic DNA Typing'. Eagle-eyed viewers will see that what I actually was doing was finishing my post on Hearne v Street.]

The issue here isn’t lab practice. While it’s obvious that labs must do everything they can to avoid contamination, what’s more important is that labs and police recognise that contamination is always a possibility, one that should be treated as highly likely if crime sample and suspect sample were in the lab within days of eachother. It’s clear that in the Gesah/Tapp case, the DNA database match was released to the police without any check of the paperwork to test the possibility of contamination. Moreover, the police both charged Gesah and held a proud press conference naming him and lauding the ‘national’ database (even though the matched profiles were both Victorian), before any check was done. One has to wonder, indeed, if the only reason the check was done was because post-charge investigations went awry? Did Gesah have an alibi, which he was somehow able to establish after 25 years? If he hadn’t had an alibi, would this error have every been detected? Or would Gesah have decided to plead guilty in the face of apparent proof that semen on Seana Tapp’s clothing his? Beyond the possibility that an innocent man might have been branded a double-murderer-child-rapist, there’s also the chance that the lab’s blunder in 1999 now means that the real killer can breathe easier.

The behaviour of the lab and the police raises some interesting Charter questions too. Both of them are public authorities, bound by the conduct mandate to not act in ways that are incompatible with the following human rights of Gesah:

Dodging a dodgy argument (dodgily)

In Allen v Secretary to the Department of Justice & Anor [2008] VSC 28, (the first Supreme Court Charter case in two months!), Hansen J was confronted by this typical example of a crazy buckshoot by an unrepresented, non-legally educated litigant:

Ground 2 complained that between 13 September 2007 and 1 November 2007 the Office of Corrections breached a duty of care and impugned Mr Allen’s right to privacy and not to incriminate himself by, without lawful excuse, procuring the release of the Dorevitch medical file, and denying him due process of law. It is then stated in ground 3 that the actions of the Office of Corrections and their “body” the Adult Parole Board offended the Westminster system, 800 years of the English Common Law and the Victorian system of due process under s 70 of the Drugs, Poisons and Controlled Substances Act 1981, the Sentencing Act 1991, the Corrections Act 1986 and the Victorian Charter of Human Rights and Responsibilities. In the further grounds it is complained that the Office of Corrections through their Adult Parole Board circumvented due process of law in that they made an allegation against Mr Allen (of drug use), cancelled his parole and imprisoned him without charge, trial or sentence under law. In these circumstances Mr Allen complains that his arrest and detention in prison is unlawful. Mr Allen further complains that despite having drawn his unlawful treatment to the attention of the Attorney-General, the Attorney-General had not done his duty to correct the abuse of due process of law, and had abused his duty of care to Mr Allen under the Charter of Human Rights and Responsibilities.

The plaintiff, the incongruously-named Peter Allen, is clearly not a happy customer of Victoria’s criminal justice system. Serving a sentence (or sentences) for an unnamed crime (or crimes) since 1985, Allen (after unsuccessfully challenging his imprisonment via habeus corpus), was paroled in March 2007. Alas:

Following his release on parole, Mr Allen reported directly to his supervising community corrections officer at Frankston. The Board monitored the parole and as part of this process wrote to Mr Allen on 3 April, 2 May, 8 August and 25 October 2007. As part of his parole supervision Mr Allen submitted to three urine tests conducted by Dorevitch Pathology, the results of the first two of which were reported to the Frankston office on 20 August and 16 October respectively. The August test recorded a positive reading for benzodiazepines, and the October test for amphetamine and methylamphetamine. Following these tests the Frankston office submitted a Breach Report to the Board which requested a further urine test which was collected from Mr Allen on 29 October 2007. That test, which was reported on 1 November 2007, recorded a positive reading for amphetamine. On 1 November 2007 the Board cancelled Mr Allen’s parole and pursuant to s 77(6) of the Act issued a warrant for his apprehension and return to prison. Mr Allen was duly arrested on 2 November 2007 and returned to prison where he remains serving his outstanding sentence.

Hence, his grumpiness about the divulgence of his test results. Of the three Charter rights he mentions, the rights to privacy and against self-incrimination can presumably be rejected on the grounds that the testing was both lawful and non-arbitary and (except, it seems, for police officers) the right against self-incrimination is usually regarded as not extending to drug testing. But it is not so easy to dismiss the remaining Charter right:

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

You could, of course, run a Charter s. 7(2) response. But Hansen J instead relied on the Charter’s operative provisions:

The third point is that pursuant to s 4(1)(k) of the Charter of Human Rights and Responsibilities the Board has been declared not to be a public authority for the purposes of the Charter; see the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007. Furthermore, the Charter of Human Rights and Responsibilities does not impose on the Attorney-General a duty of care to Mr Allen. Nor in my view does the Attorney-General owe a duty to Mr Allen as contended in the grounds.

Hansen is certainly right about the Parole Board. I’m sure they’ll use this case as another justification for why they need a permanent exemption from the Charter.

But the Attorney-General, himself a public authority, hasn’t (to date) exempted himself from the Charter’s conduct mandate and I’m dubious about Hansen J’s argument in respect of him.

Interpreting the interpretation mandate

On a couple of occasions in this blog, I’ve noted what I see as an important difference between the UK’s interpretation mandate:

3(1) 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.

and Victoria’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.

I think the words ‘read and given effect’ are broader than ‘interpreted’, with the result that Victoria’s (and the ACT’s) interpretation mandates are (for that reason, in addition to others) narrower than the UK’s. In particular, I’m dubious about Australian courts adopting the House of Lords’s view in Ghaidan v. Godin-Mendoza [2004] UKHL 3 that the language of the statute provision isn’t a particularly big barrier to rights-compatible interpretation.

A commenter on a recent post questions me on this:

In a nutshell, I don’t get it. How does a requirement to ‘give effect’ amount to a license to rewrite the law? Surely to ‘read and give effect’ simply means to ‘interpret’: if a law is interpreted to mean X, doesn’t it follow that the law must then be given effect as X?

The commenter rightly points out that most of the attention in debates on the limits of the UK and Victorian interpretation mandates has been directed to the shared ‘possible’ language in both. Neither of the two major texts on the Charter, nor Julie Debeljak in her major essay on Charter interpretation, pay the slightest attention to the words ‘read and given effect’ in the UK mandate, despite all relying heavily on comparison with the UK provision. The implication is that the only relevant difference between the Australian and UK provisions is the ‘purpose’ qualification (a qualification have argued elsewhere was a bad idea when it comes to protecting rights.)  But I think the contrast between ‘read and given effect’ and ‘interpreted’ matters. Here’s why: [EDIT: I've updated the argument now to take account of further information mentioned in the comments.]

First, there’s a significant lineage for the ‘read and given effect’ terminology of the UK interpretation mandate in older rights statutes:

• Canadian Bill of Rights Act 1960, s2: Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declare…

• European Convention Act 1972, s2(4): The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section

Both of these provisions have been held to require far more than interpretation: they both require courts to decline to apply contrary legislation! By contrast, another statute in this line, the Hong Kong Bill of Rights Ordinance, only demands that statutes be ‘constructed’ consistently with the ICCPR (with a separate provision providing for the repeal of inconsistent pre-HKBoR ordinances.)

I think it’s the enormous breadth of the words ‘read and given effect’ (in light of these earlier HR statutes) that is the reason why British judges and commentators typically ignore them and instead concentrate on the ‘possible’ language. Basically, without the ‘So far as it is possible to do so’ proviso, the UK HRA’s interpretation mandate could well have been read the same way as the earlier acts. As noted in Ghaidan, the possible language seems to be borrowed from a classic European Court of Justice judgment on domestic obligations under the EC treaty, which (unlike the ECtHR, which ignores internal distinctions between different branches of member nations) set out the separate obligations of the judicial branch in relation to interpreting local legislation using the ‘possible’ proviso. So, the UK judges interpreting the ‘possible’ language focus on ‘separation of powers’ concerns as the sole significant limit to the UK interpretation mandate.

Second, not all British judges have ignored the ‘read and given effect’ language, even in Ghaidan.

Human rights avalanche!

Too many human rights cases, too little time (and, yes, I’m never happy.) Here are some short points on the rush of human rights cases (or related cases or events) that have come out the past few days. I hope to get back to some of them:

• Sham marriages: In Baiai & Ors, R (On The Application of) v Secretary of State For The Home Department [2008] UKHL 53, the House of Lords examined the compatibility of a statutory scheme that required people under immigration control who wanted to marry to get permission from Home Secretary with the ECHR right to marry. The Lords accepted that the scheme served an important function of preventing sham marriages (designed to advance a prospective immigrant’s domestic rights) – thus overturning a declaration of incompatibility that had been issued – but rejected the regulations applying the scheme, which rejected all applications from people who were in the UK without leave or on only short stays. While marriage is not (presently) part of Victorian law and the Charter has no right to marry, this decision may have some relevance to decisions by the Registrar of Births, Deaths and Marriages on whether or not to register relationships, in light of the Charter’s right of families to ‘protection’ by the State.

• Discrimination against Mormons: In Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56, the House of Lords rejected a complaint by the Mormons against a law that provided a rate reduction only for public places of worship, which excluded Mormon temples (which only Mormons can enter.) The majority applied the difficult rule of international human rights law that largely limits equality rights to the enjoyment of other protected rights (which arguably also applies to Charter s. 8) to hold that there’s no right against discrimination when it comes to differential building rates. (They followed an equally dubious decision that rejected a challenge to a law that provided relief from child support obligations to people who re-partner, but only with someone from the opposite sex.) Lord Scott of Forscote felt uneasy about this denial of rights, but held that any discrimination against non-public places of worship was justified because ‘secretive’ religions are divisive. Christ!

• Rights of tenants: In Doherty & Ors v Birmingham City Council [2008] UKHL 57, the House of Lords gave its third judgment on the difficult question of the obligations of public authorities to tenants. Faced with ECtHR decisions holding that some evictions processes were incompatible with tenants’ right to respect for their home, the Lords refused to further widen the common law remedies against public authorities, holding that to do so would undermine the decision of the UK parliament to allow public authorities broad eviction rights in some instances. The decision (again) gives lie to Bob Carr’s claims about the problems the UKHRA supposedly holds for property owners trying to evict trespassers. It also re-affirms my doubts about the conduct of some Victorian lawyers in using the Charter to protect tenants from evictions by Victorian public authorities. Most importantly to me, this decision is highly notable for its detailed analysis of the UKHRA equivalent to Charter s. 38(2), a provision I think deserves a lot more attention.

• Admissibility of private diaries: In Lifely v Lifely [2008] EWCA Civ 90, the Court of Appeal dealt with a miserable battle between two brothers over their late dad’s milk business. One brother had earlier convinced a court that some of the milk proceeds were intended to be shared between both sons; however, the other brother had since discovered the first brother’s diaries, which seemed to contradict testimony that had been given about what had been agreed. The Court of Appeal rejected an argument that the right to respect for private life meant that the diaries shouldn’t be admitted; rather, not only should they be admitted as fresh evidence to contradict the earlier finding about the agreement, but the whole case should be revisited in light of the doubts the fresh evidence suggested about the first brother’s credibility. Interestingly, the case sounds a note of caution that the law on the protection of privacy may still have some way to develop and that inadmissibility may be the right remedy in an appropriate fact situation. Could be interesting in terms of the application of s138 of Victoria’s new Evidence Bill in civil cases.

• Politicised criminal investigations: Two fascinating and incredibly high profile decisions on the discretionary powers of criminal investigators. The Constitutional Court of South Africa, in two decisions, upheld most aspects of an investigation by the country’s independent national investigators (the Scorpions) into the business affairs of the country’s next president, Jacob Zuma. Zuma raised a number of his rights under the SABoR, notably arguing that his right to dignity (the core right of SA rights jurisprudence) was being infringed by the stop-start investigation. The Court’s decision was largely statutory, albeit with repeated reference to human rights, and largely upheld the need for workable investigative powers to scrutinise corruption (especially in light of Zuma’s apparent unwillingness to cooperate in the investigation.) In In Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office [2008] UKHL 60, the House of Lords considered a decision of the Serious Fraud Office to drop an investigation of Saudi businesses after the Saudis threatened to stop cooperating in the war on terror. The Lords unanimously held that the decision was within the very broad ambit of prosecutorial discretion. This wasn’t an HRA case, but would seem to have relevance to the question of whether or not prosecutorial decision-making falls within the Charter s 38(2) defence to the conduct mandate.

• Parole boards: A brief mention of the Charter’s exemption of parole boards from the definition of public authorities in a Victorian case involving a challenge to the revocation of parole following an adverse drug test.

• Jack Thomas: It seems, he drew the short straw of Gleeson CJ and Hayne J as his special leave panel in his attempt to re-examine the Victorian Court of Appeal’s unfortunate decision to allow the Cth DPP a second bite of the cherry. Should be an interesting trial…

• Equal Opportunity Review: The release of a review of equal opportunity processes in Victoria, with an emphasis on consistency with the Charter. Some highlights: changing VEOHRC’s name to Human Rights Victoria and introducing a ‘duty to eliminate discrimination’, a conduct-mandate-like legal rule, but without some of the Charter s. 39 limitations.

I could say more about all of these, especially that tenancy case. Whether I have the time is another matter…