Charter s. 36 vs abortion

Victoria’s first major public Charter rights debate proceeds apace, with earlier threats of hospital closures being augmented by threats of mass retirement and immigration of doctors in response to clause 8(1)(b) of the Abortion Law Reform Bill 2008:

8(1) If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must…  (b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

But the Weekend Australian tells of a different sort of threat:

It is understood Catholic Health Australia, which has already threatened to withdraw medical services from its 15 hospitals in Victoria, will challenge the legal validity of the most contentious provision in the abortion bill – forcing doctors with a conscientious objection to abortion to refer patients elsewhere for a termination. It is believed the upper house MPs who will vote on the bill, after it passed comfortably through the lower house a fortnight ago, will be warned against supporting the proposed legislation because the legal status of the bill is uncertain. The nub of Catholic Health Australia’s argument is that mandating doctors to act a certain way in their medical practice is in breach of the Victorian Charter of Human Rights. The charter is a set of human rights, freedoms and responsibilities protected by law. This would be the first challenge to the charter since it was introduced in 2006.

I assume that this ‘challenge’ to the legislation is actually a reference to the procedure on Charter s. 36(2):

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

Contrary to the suggestion in the newspaper article, such a challenge could not be to the ‘legal validity’ of the law (once enacted):

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made

Instead, the sole ‘legal effect’ of such a declaration is to require Morand to make a statement to the Parliament:

37 Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must- (a) prepare a written response to the declaration; and (b) cause a copy of the declaration and of his or her response to it to be- (i) laid before each House of Parliament; and (ii) published in the Government Gazette.

The benefits (if any) of a declaration are extra-legal, including a possible political win and (perhaps) a plea in mitigation for anyone facing professional censure or other action for breaching the referral rule.

But that assumes that such a declaration will be given. Putting aside the substantive issue of whether or not clause 8(1)(b) is compatible with Charter s. 14, any ‘challenge’ using s36(2) faces some significant procedural obstacles.

The (Charter of) Rights Mooting Competition

This, the second year of the Charter, is also the second year of the Castan Centre’s Charter of Rights Mooting Competition. Like almost everyone, they drop the ‘and Responsibilities’. And perhaps for good reason. Whereas last year, Monash beat Victoria, this year both the finalists were from my law school. I’ve no connection to the competition myself – the point person at MLS is John Tobin – and unfortunately I had to miss this year’s final, due to another engagement. Nor have I had any contact with the mooters, though I know that one of them sometimes reads this blog. (Indeed, my mooting experience at law school was pretty negative. My team lost all its moots at the Jessup Moot and I’m still smarting about one judge who praised one of my opponent’s argument that the defendant country had automatically given the ICJ merits jurisdiction simply by turning up as a ‘very original’ argument. There. Now, surely, I’ve finally gotten over that one! Sigh. Still not…)

Anyway, the Castan Centre competition is clearly a terrific idea, with the capacity not just to educate the mooters themselves, but maybe even the judges about the Charter.  But, because this is Charterblog, I’ve got some concerns too. I only just realised that the mooting problems (from last year and this year) have been posted online. Last year’s problems look terrific, each requiring competitors to discuss ‘issues relating to the Charter’ about the following scenarios:

•  A Sikh prisoner who had his turban, correspondence and cell searched by guards
• Student protesters who clash with Victoria police while protesting an immigration detention centre
• A privately run nursing home facing conversion into a backpackers’ resort.

These questions strike me as raising a great mix of issues about the rights in Part Two and the operative provisions in Parts One and Three of the Charter. The final, in particular, expressly involved a real statute, presumably raising all sorts of interesting issues about the interpretation and conduct mandates.

However, the style has changed for this year’s competition. The three problems are much longer and more convoluted, mixing some realistic situations (notably the final problem, which inititally resembles real life events in the US where children were seized from a polygamist compound) with some pretty bizarre scenarios (Finn twin sisters – Fwisters? – protesting against teaching methods; a vegetarian caught up in the quarantining of a country town stricken with a cow-based disease.) This is a matter of taste, of course, but I don’t much like silly scenarios. Indeed, it’s not really clear to me why you wouldn’t just set real cases: a creepy doctor trying to avoid being disbarred?; a defence company seeking an EEO exemption?. How about a broadcaster trying to show a controversial docudrama?

But that isn’t my main concern. Rather, it’s the particular issues that the competitors were asked to address.

Underbelly: The Director’s Cut

The judgment in X v General Television Corporation Pty Ltd [2008] VSC 344 is now on Austlii. However, just like the version of Underbelly that Victorians have at last been able to watch, it’s a trimmed down ‘authorised for publication’ version with annoying breaks:

4 [Paragraphs 4 to 12 inclusive have been deleted from this version.]

18 [Paragraphs 18 to 23 inclusive have been deleted from this version.]

Alas, we can’t go interstate to find out what’s in the mystery paragraphs. Although, at least that means that there’s some point to all the censorship, unlike the weird pixellation of Underbelly’s Victorian edition. Or is there? Tthe sole purpose of the trimming is so that we don’t find out who X is. The judgment does reveal that X is facing ‘criminal trials’ (plural) and that one such trial is for the ‘alleged murder of Lewis Moran’. (I dunno if ‘alleged’ is the right word. After all, Evan Goussis is currently serving a sentence for that very murder. Or maybe he’s been secretly acquitted?)  Vickery also excludes half of Victoria’s population by referring to ‘his murder charge’. So, not Zarah Garde-Wilson, I guess. Surely, when that trial comes about, the jury are going to work out the mystery? Or are there dozens more folks lined up to go on trial for killing poor old Lewis?

Alas, what is also left secret is exactly why Justice Peter Vickery ordered that the first five episodes of Underbelly could be shown, but not the sixth. He does reveal that what Victorians have got to see is the Director’s cut:

A “Victorian” edited version of the program has been produced to satisfy concerns expressed by the Jeremy Rapke QC, Victorian Director of Public Prosecutions. The Victorian version is proposed to consist of an edited version of episodes 1-6 only.

So, Rapke – he of the media release that threatened prosecution for anyone who showed any part of Underbelly whatsoever – has indeed decided that over a third of the series is AOK. Perhaps what was prejudicial to Evan Goussis isn’t prejudicial to X. Or maybe Rapke is learning on the job as Victoria’s chief censor.

But Vickery had a problem with episode 6:

I find that the broadcasting of episode 6 of the television series Underbelly in Victoria, prior to the trial of X on his murder charge in relation to the death of Lewis Moran would constitute a contempt of court. In my opinion, the making of the necessary prohibition order is necessary to ensure a fair trial for the accused X in relation to this charge. As the Court of Appeal said in General Television Corporation Pty Ltd v Director of Public Prosecutions and Ors: The test for liability for sub judice contempt is whether, as a matter of practical reality, the publication is shown to have a tendency to prejudice or embarrass particular legal proceedings. I find that there is a real and definite tendency for episode 6 of the edited Victorian series to prejudice the trial of X and that a broadcast on Channel 9 in Victoria prior to X’s trial in relation to the death of Lewis Moran would have this effect.

Of course, we can’t know what is wrong with episode 6 (unless we buy the DVD from interstate.) But isn’t it a little weird how the very case that Vickery quoted here had already ruled that the first three episodes couldn’t be shown at all prior to Goussis’s trial:

The first matter to be considered is whether, as is submitted by the applicant, no prejudice could arise by reason of the broadcast of episodes 1 to 3 of Underbelly. Episode 1 is entitled ‘The Black Prince’ and involves matters relating to one Alphonse Gangitano. It is set during the year 1995. The period of time to which the episode refers is thus temporally separate from the matters connected to the trial. However, B and two of his sons are named and represented by actors in episode 1, as is D. This episode commences to describe the relationships which each of those parties has to each other and to other persons. Those relationships are portrayed as being relevant to the events which lead in due course to the death of B. Likewise in episode 2, B and members of his family and D are named and portrayed by actors. F is represented in the program by an actor but not named and his face is pixelated. Similarly, episode 3 is devoted principally to the family of B and their association with other alleged members of the ‘underworld’. It also refers in some detail to the alleged association between D and F.

Clearly the relationships between the deceased and members of his family and D and F, and the criminal activities in which they are portrayed engaging in as portrayed in episodes 1 to 3 are relevant to the manner in which the prosecution puts its case against A. In our view, taking into account the proximity of the trial and that fact, the judge rightly considered that the dramatic portrayal of matters of mixed fact and fiction which directly relates to the trial of A was a matter of most serious concern. In this regard it must be remembered that it was the trial judge who was to be burdened with the obligation of providing appropriate directions to both a prospective jury panel and to any jury finally selected. In our view her discretion in relation to episodes 1 to 3, as with her discretion in relation to the other episodes, did not miscarry.

I wonder if Victorian edition that Channel Nine offered then is all that different from the Rapke edition? Is the difference in orders really about proximity to the trial? Or is the truth that there are some varying views with the Supreme Court about when it’s appropriate to success? And is that level of variance acceptable? Or perhaps the difference this time is that Vickery actually considered the Charter.

Brennan (and Hulls?) on abortion

Frank Brennan writes on Charter s. 48 in Eureka Street. Or does he?:

If Victoria is to legislate abortion on demand, there is a need to consider whether all health professionals ought to be conscripted into such a regime. Has the legislature got the balance right here? Presumably the legislators assume the majority of health professionals will have no ethical or moral objection. The issue is whether the minority of health professionals who do have such objections should be forced to act against their conscience.

One would have thought that the Victorian Parliament, armed with its freshly minted Charter of Rights and Freedoms [sic - sigh, that's Canada's upbeat name. Victoria's isn't so cheery!],  would have the appropriate machinery at hand to find that balance. After all, the Charter guarantees freedom of thought, conscience, religion and belief. The Charter does permit parliament to override prescribed freedoms in rare circumstances. However Professor George Williams and his fellow proponents of the Charter were ‘strongly of the view that it would be inappropriate to use the override clause to sanction a breach of important rights such as freedom of conscience, thought and religion’. They did not tell us that such rights could be overridden without need for an override or even without need for parliament to consider the impact of proposed legislation when those rights could ‘interfere’ with the right to abortion on demand….

Section 48 provides that ‘Nothing in this Charter affects any law applicable to abortion or child destruction’. It was included in the Charter to accommodate the concerns of Professor Williams and his colleagues that the Charter not purport to resolve the question of when life begins for the purposes of defining the right to life. The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’ They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

While Brennan is quite correct in characterising Charter s. 48 as an unlimited form of override for laws like clause 8 of the Abortion Law Reform Bill, he’s wrong to blame George Williams and his Human Rights Constultation Committee.

Charter s. 48 did not appear in the Committee’s draft bill. Instead, they followed the ACT approach of limiting the right to life (but no other rights) to the born. However, the unnamed folks who I refer to in this blog as the ‘meddlers’ – the ones who changed the Committee’s draft before it went to Parliament,  invariably for the worse – deleted the limitation on the right to life and instead inserted the risible Charter s. 48. The current one-sided rights argument being won by the pro-life movement may be what is now being reaped from the meddlers’ sowing.

Rob Hulls’s surprise decision to vote against the bill may provide a clue as to who the meddler was on this occasion. He hasn’t revealed the reasons for his conscience vote, with Brumby labelling it a private matter. I’m dubious about that claim: conscience votes are arguably the only reason for voters to pay attention to who they are electing, rather than the party he or she belongs to. Not knowing what Hulls’s objection to the bill was makes it impossible to for his electors to guess how he may vote if the issue or a related one returns to parliament in the future. But maybe the mysterious appearance of Charter s. 48 in the Charter bill, combined with a dropping of the Committee’s gloss on the right to life, shows what Hulls was worried about.

Was Hulls unhappy with denying a key human right to the unborn? This theory gets support (of sorts) from the parliamentary debate on the bill.

An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:

(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years…

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

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, whether within or outside Victoria…

(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…

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

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.

(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.

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear.

Do hospitals have rights?

The Charter has made the front page of the Age twice in two days, both curiously on the issue of abortion, despite Charter s. 48, which provides that nothing in the Charter ‘affects any law applicable to abortion or child destruction.’ While the Minister took the view that Charter s. 48 removes any obligation to provide a statement of compatibility (and hence none was provided), SARC questioned whether Charter s.48 has any impact on the debate over bills, which aren’t laws and aren’t affected by the Charter.

Possibly to the surprise of some, the Charter has been raised almost exclusively by the pro-life side of the debate. They’ve picked their issue cleverly, focusing not on the abstract debate about whether or not foetuses have human rights but instead on Charter s. 14:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including- (a) the freedom to have or to adopt a religion or belief of his or her choice; and (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

(2) A person must not be coerced or restrained in a way that limits his or her freedom to have or adopt a religion or belief in worship, observance, practice or teaching.

Catholic Archbishop Denis Hart wrote, in a ‘pastoral letter’:

The Bill is an unprecedented attack on the freedom to hold and exercise fundamental religious beliefs. It makes a mockery of the Victorian Charter of Human Rights and the Equal Opportunity Act in that it requires health professionals with a conscientious objection to abortion to refer patients seeking an abortion to other health professionals who do not have such objections. It also requires health professionals with a conscientious objection to abortion to perform an abortion in whatever is deemed an emergency. The Bill is clearly intended to require Catholic hospitals to permit the referral of women for abortions…

Catholic hospitals and the large number of Victorians they serve are also in a vulnerable position. Catholic hospitals will not perform abortions and will not provide referrals for the purpose of abortion. If this provision is passed it will be an outrageous attack on our service to the community and contrary to Catholic ethical codes. It will leave Catholic hospitals and doctors with a conscientious objection to abortion in a position where they will be acting contrary to the law if they act in accordance with their deeply held moral convictions. This Bill poses a real threat to the continued existence of Catholic hospitals. Under these circumstances, it is difficult to foresee how Catholic hospitals could continue to operate maternity or emergency departments in this state in their current form.

In an op-ed in today’s Age, Liberty Victoria Vice-President Anne O’Rourke responds to this Charter claim:

The Victorian Charter of Human Rights and Responsibilities does indeed guarantee a right to freedom of thought, conscience, religion and belief, as Archbishop Hart points out. There are two errors in his claim, however. The first is that only human beings, not hospitals or related entities, have human rights

O’Rourke here relies on Charter s. 6(1), which provides that ‘[o]nly persons have human rights’. This provision reflects traditional human rights advocates’ dislike of corporations. Indeed, the Victorian Law Reform Commission, whose recommendations are responsible for the Abortion Law Reform Bill’s ‘conscience clause’, expressly adopted this prejudice as a reason to reject the approach taken in Western Australia of providing every ‘person, hospital, health institution, other institution or service’ with a conscience clause. The VLRC wrote:

As freedom of conscience is generally understood to be held by individuals, the conscience
provision should not extend to corporations. This is consistent with existing conscience
provisions in other Victorian laws. The danger in extending the provision to institutions is that it may establish a precedent of corporations holding interests that could be categorised as human rights. This could lead to perverse outcomes.

What are those ‘perverse outcomes’? A footnote explains:

See, eg, RJR-MacDonald Inc v Canada (Attorney General) [1995] 3 SCR 199. Free speech extends to commercial speech—tobacco advertising laws contravened freedom of expression. There is no reason to extend the provision to organisations because the new law of abortion will not establish a positive duty to perform abortions.

Yes, that old furphy, the supposedly controversial extension of freedom of expression to commercial – not corporate – speech. Not only was the Supreme Court of Canada’s decision in that case entirely correct – tobacco sellers were barred from saying that required health warnings were from the government, not them; and the Canadian government declined to provide any evidence for why less broad bans would fail to achieve the desired effect; remedying both defects led to the Supreme Court upholding the new law – but it is, at best, an argument for restritcing free expression, not other rights. The real gripe of Australian human rights advocates with the Canadian case, and corporations in general, isn’t any analysis of the decision – there’s NEVER anything more than a footnote – but anger that the Canadian government’s shoddy lawyering gave the anti-Charter mob a free kick. While the rejection of corporate human rights is sometimes belatedly justified by their supposed power (and hence the potential for them to ‘abuse’ human rights), that objection is scarcely applicable to all non-human entities. Since when have hospitals and health providers been deep pocketed abusers of legal rights?

O’Rourke’s reliance on the limitation of human rights to humans is transparently specious in this case. No-one’s claiming that the hospitals (e.g. the building?) have a freedom of conscience. Rather, Hart’s claim is made on behalf of the many human beings with a stake in such hospitals, including donors, managers, employees, patients and Catholics in general. Indeed, Charter s. 14(1)(b) expressly refers to people demonstrating their believes ‘as part of a community’. O’Rourke (like the VLRC) does the pro-choice side an enormous disservice by relying on a miserly technical knockout, especially one whose flaws are transparent to lay people. Liberty Victoria ought to disown this risible use of Charter s. 6(1).

O’Rourke is on much stronger ground in relation to her second argument, based on Charter s. 7(2):

The Thirty-Eight Steps

I’m not done yet with Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, arguably the most significant Charter judgment to date (and the most flawed). In this post, I look at the overall approach Hollingworth J adopted to analysing a Charter s. 38(1) claim:

I accept the Solicitor-General’s suggestion that in analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (the justification question)

In my previous posts, I said that, while Hollingworth completely blew the first question, she nevertheless correctly (if overly tersely) answered the second question. But was that the right question to ask? I don’t think so. Moreover, Pamela Tate’s list omitted some important questions too.

Here are the questions Hollingworth should have asked (in this or any other case involving a decision made under a Victorian statutory provision):

1. Did the decision or its consequences engage a Charter right? (the engagement question)
2. If so, did the public authority’s decision either (a) limit a Charter right? (b) fail to do something required by a Charter right? (c) involve a failure to give proper consideration to a Charter right? (the compatibility question)
3. If so, was making a different decision or giving proper consideration to that Charter right reasonable in light of the governing statutory provision? (the statutory defence question)
4. If not, is the statutory provision a demonstrably justified and reasonable limit on Charter rights? (the reasonable limits question)
5. If not, is there an alternative interpretation (consistent with the provision’s purpose) that would make it reasonable to make a different decision or give consideration? (the interpretation question)

Sabet deserved an answer to each of these questions, but instead he only got answers (of sorts) to Tate’s three questions. What did they leave out?

How to presume innocence

While Hollingworth J’s lousy discussion of the scope of the presumption of innocence took up the bulk of the Charter discussion in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, it wasn’t the basis on which she dealt with Sabet’s claim. Instead, her only definitive ruling was her answer to the second of the three questions she posed: ‘did the Board impose any limitation on the presumption of innocence, in deciding to exercise its supervision power under s40(1)?’

This is a very difficult question. Most human rights are rights for or against particular actions: people have a right to ‘express’ things, they have a right not to have their privacy ‘interfered with’, they must be ‘told’ about the charges against them. But Charter s. 25(1) is different:

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

Breaking this down, this right governs what must happen between two moments in time: the moment when someone is charged with a criminal offence (e.g. Sabet being charged with eight counts and rape and indecent assault on 26th March 2008) and the moment (if ever) when that person is proved guilty according to law (e.g. if and when a court enters a guilty verdict against Sabet in relation to those charges.) In between those moments, Sabet must ‘be presumed innocent’. But what does it mean to ‘presume’ innocence?

Sabet’s Charter claim was that the Board breached Charter s. 38(1), which makes this question a little less abstract:

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.

The trick is to identify what it means to ‘act in a way that is incompatible with’ presuming someone innocent. (Note that there’s a second branch to Charter s 38(1), which I’ll discuss later.) Here are some arguably incompatible actions, from least contentious to most:

Hulls’s Charter report card

Rob Hulls, acting premier, deputy premier, A-G and founding father, came to speak at Melbourne Law School today. Alas, the students were not hanging from the rafters as they do for Kirbs. And more’s the pity because, much to my surprise, Hulls is a gifted speaker and, moreover, had plenty of interesting things to say. That may well not be news to people who know him, but I’ve never heard him speak before outside of head-kickin’ soundbites on the news. And, call me jaded (really!), but I’m used to politicians just blabbing out a bunch of mundane political-feed-good-speak, scribbled out by some bored public servant the day before. Yes, I’m talking about you Rob McClelland. (I’m judging that by the media releases he sends me. Maybe you just have to be there.) For that matter, most of the things I read these days, purportedly written by Hulls, are some pretty turgid and defensive statements of compatibility.

So, it was great to hear him describe his journey from law school to acting premier, via Queensland. And it was frankly inspiring to hear his commitment to improving the justice system. It was the latter that brought me to his speech, hoping to hear some tidbits about Justice Statement 2: Electric Boogaloo. He mentioned some new lists for courts (mental health) and the unification of the court system. I thought at first that that meant shifting VCAT to the old magistrates’ court building (which it probably does), but it also apparently means having a single statute for all of the courts. (Big new statutes are defintely not music to my ears, although that one does sound like a great idea.) And lots and lots of ADR – appropriate dispute resolution. Aw.

Anyway, the Charter got a relatively brief mention as one of his achievements, with him emphasising how its main aim is to restrain the executive. (No mention of the parole boards!) And a student asked Hulls about the chances of economic and social rights being introduced after the 2011 review. Hulls’s answer: nope. Basically, it won’t happen unless there’s bipartisan support for the Charter, and we’re a long way from that. Indeed. (Strange that he didn’t mention the federal charter either, which surely is a factor).

But there was one last comment he made that I want to explore a touch. He noted that there are still ‘doomsayers’ who predict that the courts will become clogged with Charter litigation and that criminals will roam the streets. His response was to note, as a positive thing, that the Charter has not yet been raised successfully by any criminal defendants. Is that true? It depends on your definition:

• There’s Kelly Gray from Echuca, who got bail from Bongiorno J back in January, on the basis of his Charter right to a guarantee of a trial without delay. I’m not sure why he doesn’t count: perhaps because he didn’t raise the Charter (Bongiorno did), perhaps because Bongiorno more or less ignored the whole of Part 3 to give him bail.
• There’re at least two more Charter bailees, Qang Hung Pham and  Zlate Cvetanvoski, reported in the media in the Magistrates’ Court. Surely they count? Or is Hulls only talking about cases where Charter s. 35 notices were issued (i.e. Supreme and County Court cases?) For all I know, there’ve been hundreds of these cases.
• And what about the brothers Mirik? It’s true that the court didn’t apply the Charter in their case, but that’s because, once the Miriks issued their Charter s. 35 notices and everyone intervened, Victoria Legal Aid blinked and gave them a (joint) counsel. It’s clear that, but for the Charter, they would have been on their own when it came to defending against a crimes compensation claim. Do you need a court order to count? Or is Hulls discounting them because, like Bell J, he thought the proceedings were civil?
• Next, there’s TP: she avoided eviction for her ex-partner’s crimes. But this is a pretty slim case, as TP was no criminal herself (even though the Department of Housing was happy to treat her like one, instead of the victim of violence they later conceded her to be) and the proceeding was certainly civil. Still, VCAT member Nhill certainly thought that the Charter will mean that future evictions of criminals will be even harder. Good news for the doomsayers?
• Finally, Hai Minh Nguyen and Andrew Duncan, drug offenders, got some sort of vague ruling in their favour from the County Court using the Charter, in their battle against the proceeds squad’s designs on their houses. The Supreme Court affirmed the ruling, without mentioning the Charter.

OK, so Hulls is fairly close to the mark in his claims that the Charter has not benefitted any criminals (give or take the odd baillee and asset-rich drug offender.) Of course, it’d be good to know what was going on the in the County and Magistrates’ Courts, where most criminal defendants hang out. Maybe that proposed unified court system will manage to have a unified website for publishing judgments too?

But isn’t it also worth asking whether the lack of happy defendants is evidence that the Charter is working. Hulls conceded that a number of defendants have tried and failed. Apart from (possibly) the above, who are fish the Charter rejects?:

The scope of Charter s. 25(1)

As I guessed, Sabet v Medical Practitioners Board of Victoria [2008] VSC 346 – at last available on Austlii – proves to be an important judgment on the Charter’s right to be presumed innocent. Based on a newspaper account of Sabet’s case, I thought he would lose and that proved to be correct. Alas, Justice Elizabeth Hollingworth’s analysis is quite a disappointment on a number of grounds. Indeed, the judgement is yet another Charter debacle.

Ahmed Sabet, a doctor presently facing eight charges of rape or indecent assault of a patient, challenged a decision of Victoria’s medical profession regulator to suspend his licence to practise. His Charter claim relied on Charter s. 25(1) (the right to be presumed innocent) and Charter s. 38(1) (the conduct mandate). Hollingworth framed the legal issues as follows:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in [Charter] s7(2)? (the justification question)

A lot of her judgment is devoted to the first, engagement, question, because there is a major unresolved question about the scope of Charter s. 25(1).

25. Rights in criminal proceedings

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

There’s no doubt that Sabet, by virtue of the rape and indecent assault charges, is a ‘person charged with a criminal offence’ and therefore he acquired the ‘right to be presumed innocent’. He hasn’t yet been proved guilty according to law (and he may indeed be acquitted), so he still has the right in Charter s. 25(1).

The crucial question is: where does he have that right? Obviously, he’ll have it at his trial. But does he have it in other settings too? The text of the section doesn’t place any limit on the settings when Sabet is to be presumed innocent, but the section’s heading refers to rights ‘in criminal proceedings’. Does that mean that Sabet has no right to be presumed innocent in non-criminal proceedings (like the hearing before the Medical Practitioners Board?)

According to Hollingworth’s description, Sabet’s lawyers argued, as I do, that the heading should be ignored:

Dr Sabet argues that the language of s 25(1) is inconsistent with the limitation of the presumption to criminal proceedings, and therefore the heading must give way.[63] He says that the language of s 25(1) is clear and unambiguous in setting out the human right, namely, that “a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.” He argues that “such clarity in stating the right is inconsistent with any attempt by the heading to restrict the context of that right solely to criminal proceeding.” He does not really explain why that is so.

Alas, that narky last line is an example of the skeptical and dismissive tone of Hollingworth’s entire judgment.

Federal criminal law conference

I went to a conference last week in Sydney on federal criminal law, run by the NSW Bar Association and the Law Council of Australia. It’s a feeder conference (alongside various roundtables) to a coming 2020-style summit in Canberra on federal criminal justice reform. The speakers included Andrew Lynch, Stephen Keim and Mark Weinberg.

And me, wearing my human rights and federal criminal law hats, neither of which especially fit me, but being a Victorian criminal law academic who is a more-than-passive observer of the Charter is close enough. I spoke about my love/hate relationship with the Charter and mused about its application to substantive criminal law, including examples discussed on this blog like the ‘World Youth Day’ case, the prosecution of a teen on child porn charges and the ‘wardrobe malfunction’ case. II began with some concerns about the lack of involvement of criminal lawyers in consultations on human rights statutes and ended with some suggestions for how criminal lawyers could contribute to the coming debate over a federal charter. The papers are available here.

The alienable right to drive

Losalini Rainima has just completed a nine-month stint in a NSW prison for driving without a valid licence. This surprising punishment is the result of her of her refusal to accept conditional bail or, following her lengthy remand in custody, a good behaviour bond, or, following her sentence, the conditions of parole. Her refusal in each case was, I assume, for the same reason as her refusal to accept NSW’s driving licence regime. As she told her magistrate:

God has given me a right that is given to me, it’s within me. … I have a right of passage. I have a right of movement. All living things are given graces; the birds fly, the fish swim, the kangaroo hops, and I’ve been given the graces to drive.

She speaks, of course, of a right that Victorians have under the Charter, albeit given to them not by God but by the Victorian parliament:

12 Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Appeals to divine law typically fall on deaf ears in courts, but her appeal was accompanied by s78B notices. There, she had the assistance of members of UPMART.

What is UPMART? Curiously, those members told Hidden J that UPMART wasn’t an acronym – perhaps it’s a discount chain? – and declined to say what the name meant. However, the arguments put in their s78B notice were curiously similar to those on the website of a Victorian organisation also called UPMART. Its site offers over twenty phrases spelt out with the letters U, P, M, A, R, T including ‘Unity Pulse of Marriage Assented by Rite of the Trinity’, ‘Universal People Measuring Abundance in Real Time’ (a variation of Time and Relative Dimensions in Space?) and, at the top of the list, ‘United People Movement Against Road Tolls’. They also offer quite a bargain: a driver’s licence that is immune to both fines and tolls and lasts for life. The catch: it’s not offered by VicRoads, but rather the common law. Indeed, the site contains this disclaimer:

PLEASE NOTE the initiatives of UPMART are based on the opinions of some of the members of UPMART, who are not legally qualified, but whose opinions are based on their knowledge of common law, constitutional law, natural law and bible codified common law. The initiative of common law vehicle registration is the most controversial of the initiatives and is presently not recognised by the laws of the states and Territories, and persons participating in this initiative may be exposed to prosecution under the laws of the state or Territory. It is alleged that this initiative is in conflict with State Statutes. Likewise other initiatives also challenge State and Territory laws.

UPMART’s lawyers may well find some surprising comfort, in relation to their views on the inalienability of the common law from state legislation, in the view of Victoria’s Solicitor-General, Pamela Tate, which has protected the common law from being affected by one state statute, the Charter.

Alas, UPMART’s support did not win the day for Ms Rainima. In Rainima v Magistrate Freund [2008] NSWSC 944, Hidden J held:

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other. For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not. If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.

But that’s nasty NSW. Why doesn’t UPMART bring a similar action in Victoria, where there is a distinction between parliamentary sovereignty and human rights?:

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

There are a couple of catches though:

VCAT vs the conduct mandate

Deputy President McKenzie’s judgment in BAE Systems Australia Ltd [2008] VCAT 1799 is significant as the first judgment on  the definition of a public authority  the Charter s. 38(2) defence to the conduct mandate and the scope of Charter s. 39, all issues dear to my heart.

Interestingly, the issue of the applicability of the conduct mandate seems to have been raised by BAE itself (with VEOHRC, it seems, missing in action on this point.):

BAE also made submissions about whether it might be a ‘public authority’ within the meaning of the Charter. In summary, and with certain exceptions, s38 of the Charter makes it unlawful for a public authority to act in a way incompatible with a human right or, in making a decision, not to give proper consideration to a relevant human right. Assuming (without deciding) that BAE is a public authority, this exemption would apply to BAE’s conduct from the date on which the exemption was published in the Government Gazette until the exemption expires. I have considered whether BAE, when it acts as the exemption permits it to do, would be acting incompatibly with a human right and in breach of s38 of the Charter.

Despite having dubiously held that neither the interpretation nor conduct mandates applied to herself, by virtue of BAE’s Christmas Eve application, McKenzie thought that the possible application of the conduct mandate to BAE might affect whether or not she should grant an exemption:

I do not accept BAE’s submission that I cannot consider whether BAE is a public authority until it acts under the exemption and someone raises that conduct under s39 of the Charter. It is clearly relevant, in considering whether or not to grant this exemption, to consider whether the Charter would apply to the conduct which BAE seeks to be exempt from the EO Act, and whether, if it is a public authority in respect of that conduct and obliged to act compatibly with human rights, it would be inconsistent with that obligation and the Charter to grant the exemption. I do not consider that the Charter affects the determination of this proceeding or the operation of any exemption granted.

At least, I think that’s what she held. Who knows where that last sentence fits in? The more I contemplate it, the less McKenize’s approach to Charter s. 2 makes sense to me. Anyway. BAE’s argument about Charter s. 39 seems to take the approach that that section is the exclusive means by which Charter s. 38 operates. McKenzie’s view appears to be that Charter s. 39 only governs when someone (e.g. a BAE employee with an unlucky nationality) can seek a ‘relief or remedy’ for a Charter s. 38 breach. See my discussion of this tricky and highly ambiguous issue here.

Now, onto the question of whether BAE, a private defence company, is a public authority. Here’s the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or…

The rest of the list are named  entities (and not BAE.) Obviously, the only one that BAE could fall within is Charter s. 4(1)(c). Here’s McKenzie’s analysis:

It should not be assumed that I agree with BAE’s submission that it is merely a commercial supplier of goods and services to the Australian Department of Defence and so not a ‘public authority’ within the meaning of s4 of the Charter. In my view, it is arguable that what BAE does in providing services and designing, producing and maintaining land, air, space and sea defence systems for that Department might be a function of a public nature performed on behalf of the Commonwealth. It might be characterised as a function connected to or generally identified with functions of government.

A bold argument, but totally wrong.

The Charter vs methane

The name, ‘Brookland Greens‘, is a warning of its own. It’s the kind of environmentally happy moniker property developers always seem to choose for their least salubrious new estates. In this case, proximity to landfill has left the residents exposed to a greenhouse gas, with methane turning the grass brown and threatening to explode. The residents face having to move out and they and the entire suburb of Cranbourne risk plummeting property prices, but they aren’t the only ones who are sweating. The issue of compensation is looming large.

Interestingly, VCAT is at the centre of the crisis. Casey City Council and the Environmental Protection Agency both opposed the building of the estate so close to the landfill, citing the risk from methane, but VCAT overruled them. To VCAT’s credit, it has put the key judgments up prominently on its website, including the most damning judgment from May 2004 by VCAT senior member Richard Horsfall and member Sylvia Mainwarring:

At the conclusion of the hearing of application P1277/2003 we gave an interim decision that we accept Mr Taylor’s submissions and case that… the required buffer distances of the subdivision from the landfill should be 200 metres, not 500 metres, and should be measured from the active tipping and batter areas, and that the 200 metre buffer zone under the Cranbourne Development Plan could be progressively reduced as the tipping areas/cells are completed , capped and gas extraction systems installed and operating…

Yikes. Lucky for them (and the lawyers and experts) that they have immunity. [EDIT: And that would be why Ben Hardwick, spruiking for a class action, has written a column today shifting the blame from VTAC to the EPA.]

Lately, planning has been very much on the mind of Kevin Bell, VCAT’s new president and a keen follower and developer of Charter law, who spoke at the State Planning Conference a week back. His powerpoints are available, but not his speech. According to The Age:

He said the charter’s provisions would affect “the conduct of almost all holders of statutory power exercising functions of a public nature, including municipal councils and their staff”. Issues in Europe have included the use of land by homeless or transient people and the forced removal of elderly people from run-down accommodation. Justice Bell told the conference the critical human right often cited in Europe was respect for private and family life and the home. “The European cases emphasise the need for planning decision makers to pay careful regard to how the planning decision will impact on the human rights of the various people affected,” he said.

Charter s. 13(a) isn’t the only right at stake. I stumbled across a quite interesting ECtHR case from 2004, the same year VCAT made its fateful decisions about Brookland Greens and its tip. Öneryildiz v Turkey [2004] ECHR 657 is a Grand Chamber judgment that happens to involve the responsibility of state planning authorities for the danger of methane from a rubbish tip. However, the case involved much more significant rights than respect for home life.

VCAT vs Charter s. 49

Of the four potential Charter cases that came out this week, just one is now available online: the VCAT decision, BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799. As I guessed, this is an application by a defence contractor for an exemption from the Equal Opportunity Act‘s ban on nationality discrimination in employment, to fit in with the US’s discriminatory approach to security. VCAT Deputy President Cate McKenzie didn’t much like the US’s policy:

[A]lthough this comment is unlikely to influence the framing of the Australian and US security requirements, I would have thought that the use of nationality-based measures to prevent unauthorised access to information or material is a blunt and imperfect instrument. Assessment of individuals on a non-stereotyped basis, or training and education about the importance of the obligation of secrecy, would seem to me to be a better approach.

No kidding. But, just like every other decision that’s ever been made on this issue, McKenzie granted the exemption (albeit with more conditions than BAE wanted.) South Australia’s Equal Opportunity Tribunal granted BAE an exemption last year, so VCAT’s exemption saved 180 employees at BAE’s Abbotsford digs from having to move to Adelaide! Discrimination was obviously the lesser of two evils. Alas, McKenzie, in passing, engaged in some Charter analysis of unprecedented lousiness.

As I previously noted, VCAT had granted a number of similar exemptions last year, accompanied by warnings that, next time, the Charter may change things, with the Charter’s interpretation mandate becoming operational at the start of this year. In the ACT, where a brand new interpretation mandate identical to the Charter’s kicked in on 18th March this year, its equivalent to VCAT has already considered whether its approach to exemptions was compatible with human rights. (It decided that it was.) But, amazingly, McKenzie held that the Charter’s interpretation mandate, which was in place for two-and-a-half months before the ACT’s, didn’t apply to BAE’s application!

Alas, McKenzie was helped to this conclusion by VEOHRC. This is what Victoria’s defender of both equal opportunity and human rights (and typically the only opponent to applications for exemption) had to say in relation to BAE’s application:

Apart from submissions by BAE, the only other submission received was a letter from the Commission noting that the Victorian Charter of Human Rights and Responsibilities (the Charter) did not apply to this proceeding and also that, if VCAT granted the exemption subject to conditions involving reporting to the Commission, the Commission would be willing to accept this role.

Although we aren’t told, it sounds like VEOHRC is relying on the Charter’s transitional provision for proceedings:

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

Part 2 commenced on 1 January 2007. So, when did BAE’s proceeding commence?:

On 24 December 2007 BAE applied to VCAT for exemption under s83 of the EO Act.

Oh no. Oh god no. Not again. Please not again. So now VEOHRC can’t read a statute either. I blame our lousy law schools…

Fortunately, Deputy President McKenzie has the apparently rare ability to get a simple date right:

The explanatory memorandum for the Bill which eventually became the Charter explains that s2 was intended as a staggered commencement provision, in order to allow government to review existing laws, policies and procedures for Charter compliance. Among other things, it says that s 49 provides that the Charter ‘does not apply to legal proceedings commenced before 1 January 2008’ and that the Charter ‘may not be relied on in proceedings commenced before that date’. It explains that s49(3) means that ‘the obligations upon public authorities in the Charter to do not apply to an act or decision made before 1 January 2008’. There is a difficulty with s49(2). It provides that the Charter does not apply to proceedings commenced or concluded before the commencement of Part 2. That part commenced on 1 January 2007, not 1 January 2008. But s2 directly provides that Division 3 of Part 3 (the division in which the obligation to interpret statutes in a rights-compatible way appears) commences on 1 January 2008.

In the light of the explanatory memorandum, I suspect that the reference to the commencement of Part 2 in s49(2) is an error. However, the wording is clear and I am not prepared to say that the result is so absurd that Parliament could never have intended it. After all, the bulk of the Charter commenced on 1 January 2007. If s49(2) contains an error, it is an error that will need to be corrected by Parliament. In my view, s49(2) does not apply to this proceeding, because this proceeding was commenced after the commencement of Part 2, that is after 1 January 2007

Thank god. She’s completely right about all of that. Alas, despite that second-last sentence, she still ‘corrected’ Parliament’s error with her own woeful approach to retrospectivity:

How do you solve a problem like Dennis?

The overturning of District Court Justice Bottling’s ruling that Dennis Ferguson couldn’t get a fair trial for charges of sexual assault because of a mixture of pre-trial publicity and the difficult nature of the prsoecution case poses an extreme problem for Queensland’s criminal justice system. The Court of Appeal’s view is that the court system has to assume that jurors are capable of doing their job in these circumstances, as otherwise there’d be doubts about the whole jury (and justice) system. Heaven forbid!

But Queensland’s parliament has a new solution. The Criminal Code and Jury and Another Act Amendment Bill 2008 allows for judge-only trials if prosecution or defence applies and the following test is satisfied:

615 (1) The court may make a no jury order if it considers it is in the interests of justice to do so.

(4) Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply— (a) the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury; (b) there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury; (c) there has been significant pre-trial publicity that may affect jury deliberations

If this provision passes, it’ll be interesting to see when a court is willing to say that getting rid of the jury is in ‘the interests of justice’. Such an order, at least if done in relation to s615(4)(c), would seem to imply that jurors may fail in circumstances when judges wouldn’t.

And, yes, the new provision could be applied to Ferguson’s upcoming trial:

720(1) Chapter 62, chapter division 9A applies in relation to a trial begun after the commencement whether the offence was committed before or after the commencement.

(2) For subsection (1), the trial has begun when the jury panel attends before the court.

Proceedings against Ferguson commenced ages ago, but his jury panel presumably hasn’t yet attended. Indeed, it’s likely that publicity would delay any such attendance for some time, long enough (I imagine) to bring the trial within the new provisions.

But it may not be plain sailing, thanks to these two provisions in the new Bill:

Coming Charter judgments

It’s been a slow news time for a while at Charterblog, but I have hopes that that will soon change. Up to four significant Charter judgments may be here very soon:

• X v Channel Nine,where Vickery J permitting Channel Nine to show five episodes of Underbelly. The case may (or may not) involve consideration of the Charter. The case came down on Monday, but hasn’t emerged on Austlii yet (though the media seem to have a copy.)
• MH6 v Mental Health Review Board was listed for judgment at 10AM yesterday in the Supreme Court before Hansen J. This is presumably an appeal from a May VCAT decision, blogged about here, where a man was trying to free himself from involuntary confinement for a brain injury. A Charter argument was raised and rejected, but presumably will be raised again more clearly in the VSC. [EDIT: Or, as it turns out, not. I guess MH6 gave up on the Charter...]
• Today’s VCAT list included the availability of reasons for judgment for an application by BAE Systems Australia in the anti-discrimination list. I’m guessing that that’s one of the usual applications for exemption from the EOA’s ban on nationality discrimination to meet nasty US defence industry rules. If so, this will be the first case decided since the Charter became operational. See here for my post on a similar case from the ACT. [EDIT: I guessed right, according to The Age.]
• Sabet v Medical Practitioners Board of Victoria, the long-awaited judgment from Hollingworth J on the compatibility of professional misconduct proceedings with the right of a charged defendant to be presumed innocent, is listed for judgment tomorrow at 10. Here’s my post on a newspaper report of the case, where I made the non-bold prediction that the Charter argument wasn’t a winner.

Alas, I am dependant on Austlii for each of these. Not only has Austlii been running very slow of late, but VCAT decisions, at least, take a while to go up there.

While I love Austlii dearly, I think it’s crazy that Victoria’s courts don’t have their own websites for swift publication of judgments. This is a distinct contrast to EVERY other state or territory in Australia except Tasmania. We have eight times the population of the island state, but somehow none of our courts have the resources or interest to upload their judgments directly to their webpage. Why?

Is the Charter a black hole?

Before the abortion reform free-for-all kicked off in Victoria’s Legislative Assembly yesterday, Robert Clark, the shadow Attorney-General, attacked the Charter in response to this article from the August 5th Lawyers Weekly:

THE VICTORIAN Government Solicitor’s Office (VGSO) is preparing to move into new premises in September after a spate of increased work saw it dramatically increase staff numbers and run out of space. John Cain, the Victorian Government Solicitor, said that while two years ago the office had 50 lawyers, it now had 80. “We’ve had a very good period where we’ve seen growth in our revenue jump upward of 20 per cent,” he said. It’s an impressive feat, considering the office really has only one client; the Victorian Government.

While Cain said the work had come from a broad spectrum of areas, the charter of human rights and responsibilities was largely fuelling the boom. Despite preparing to expand into another office, Cain said he would be surprised if the rate of growth continued. “But we’re certainly at a size now where slower growth would be reasonable. We’re the size of a firm that’s appropriate for a government solicitor’s office,” he said. “We are able to attract very good-quality lawyers because of the range and diversity of work the office does.”

Clark, in a Member’s Statement, commented:

The cost of this huge increase is borne by the taxpayer. At a highly conservative estimate of $100 000 per extra lawyer, this comes to a total of $3 million a year. If you allow for higher salaries, plus on-costs, accommodation and support, the cost could be $6 million year or more. That is just the extra cost of lawyers at the VGSO; it does not account for all the extra legal staff and other public servants that different departments have had to hire, the external legal advice they have had to obtain or the extra cost caused for cases in court having to deal with charter issues. This is all money being wasted on a charter that has failed to actually deliver any improvements in human rights for Victorians. If anything it has undermined human rights by making the law more complicated, uncertain and dependent upon the personal opinions of unelected judges. The money being wasted on the charter is money that is desperately needed to treat patients in our hospitals, put more police on the street or improve public transport. We on this side of the house warned that the charter would come at enormous cost to taxpayers, and that is what is happening.

If the Charter is to become the first human rights document to be repealed in a Western country, this financial argument will be key. The employment of so many new lawyers in the VGSO is certainly fascinating, especially considering the low number (and low quality) of reported Charter judgments to date. It would be nice to know more about the work that the VGSO is doing.

The Charter vs black holes

Tomorrow is ‘big bang day’, when CERN (the European Organisation for Nuclear Research) turns on its Large Hadron Collider, a 27km circumference particle accelerator, the world’s largest and most powerful. Particle physicists hope the collisions inside the LHC will produce outcomes that confirm some particle physics theories, notably by allowing observation of a Higgs Boson, the so-called ‘god particle’ that is a possible linchpin of the Standard Model of particle physics.

All this talk of big bangs and god particles is bound to give some people the heeby-jeebies. Some scientists argue that the LHC may create some new objects that pose a danger to the LHC, nearby Geneva or the entire planet, notably the possibility of a stable micro black – and all consuming – hole. And some of those have launched lawsuits to stop CERN from turning on the LHC. One action, in Hawai’i, relies on the fact that the LHC receives a lot of US funding to found an argument based on US statutory rules, such as the Environmental Protection Act. The other action, in the European Court of Human Rights, relies on human rights law, in particular the European equivalents to these Charter rights:

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

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

I guess there won’t be a lot of privacy in a black hole. On the other hand, the collapse of the entire planet into a singularity will do wonders for the rights against discrimination.

The crux of the human rights argument is a version of the precautionary principle, as well as a debate about the ethics of scientific research.

SARC on abortion

The Scrutiny of Acts and Regulations Committee’s report into the Abortion Law Reform Bill has now been tabled in parliament and is available on the Committee’s website. Because of the Minister’s view that Charter s. 48 ruled out the application of Charter s. 28 to this Bill, SARC’s report will be the only official analysis of the Bill’s compatibility with the Charter that will be available for this week’s parliamentary debate. SARC noted some opposing considerations on this question:

The Committee observes that:

• Charter s. 48 is limited to ‘any law applicable to abortion or child destruction’. The Bill is not (yet) law.
• Charter s. 48 provides that nothing in the Charter ‘affects’ a law. Statements of compatibility have no legal effect.
• Clause 10, in extending the definition of ‘serious injury’ in the Crimes Act 1958 to cover destruction of a foetus, goes beyond the current definitions of abortion and child destruction (which are presently limited to intentional conduct) to cover reckless destruction, threats to destroy, conduct causing danger of destruction, negligent destruction, and dangerous driving causing destruction of foetuses.

SARC, in any case, has a Charter reporting function under s. 17 of the Parliamentary Committees Act, which is not part of the Charter itself and therefore is not affected by Charter s. 48.

SARC’s report identified four issues of Charter concern with the Bill:

• Decriminalisation of abortion: The Commitee observed that compatibility depends on whether or not foetuses have Charter rights (i.e. whether they are ‘human beings’ under Charter ss. 3(1) & 6(1)) and, if so, whether or not decriminalisation is a reasonable limit on any right of foetuses to have their life protected by the state under Charter s. 9. These questions are discussed by Germany’s Federal Constitutional Court, notably when unification raised the question of the constitutionality of East Germany’s very liberal abortion laws.

• Potential criminalisation of late abortion: The Committee was concerned that the combination of: (1) provisions permitting late abortions ‘only’ where two doctors have a ‘reasonable’ belief that abortion is appropriate in the circumstances; and (2) a provision extending the criminalisation of intentional serious injury without ‘lawful excuse’ to include foetal destruction that was not in accordance with the Bill; might mean that doctors face the spectre of liability to serious prosecution if they make an unreasonable decision about the appropriateness of a late abortion. This may potentially be an unlawful interference in the right of patients to privacy under Charter s. 13(a).
• Mandatory referrals: The Committee thought that a provision requiring doctors with a conscientious objection to refer patients seeking an abortion to doctors without such an objection might be incompatible with those doctors’ right not to be coerced away from practices informed by their beliefs under Charter s. 14(2).
• Exemptions from the Charter: The Committee was also concerned that the extension of the definition of serious injury in the Crimes Act to include some abortions or child destructions may have the effect of exempting a number of major crimes from the Charter (pursuant to Charter s. 48).

It’ll be interesting, perhaps, to see whether the Charter features in the coming free debate and vote.