Reporting season

Yesterday’s press was full of weird complaints about an avalanche of 300 annual reports, which supposedly should have been spread out over weeks to faciliate media reporting. I don’t get this: they’re annual reports (in this case, all for the last financial year) so of course they come out more or less the same time. Anyway, why can’t the media just maintain its interest for longer than a one-day news cycle? There are two bigger issues for me: First, why do they stay confidential until tabled in Parliament? All this tabling is just a pointles formality, isn’t it? Why not report directly to the public? And, second, why doesn’t tabling translate directly into accessibility? Why doesn’t parliament post these directly on its webite (e.g. table.parliament.vic.gov.au?) While the media supposedly got their hardcopies from a little table in a hallway in Parliament, everyone else will have to twiddle their thumbs until each individual authority posts theirs on their website.

The Charter interest in these reports are that they are virtually all reports by public authorities, so there should be details of their Charter compliance. Here’s a few reports that that (in some cases, reportedly) have some interesting Charter tidbits:

• Community Visitors Annual Report 2007-2008: The Age reports that this report alleges a mass breach of the Charter rights of some disabled people to freedom of movement and to liberty, by virtue of their continued detention in psychiatric facilities simply because more suitable voluntary facilities are not available. The report specifically considers Charter s. 7(2) and argues, bodly but convincingly, that lack of resources cannot be a reasonable limit in such circumstances. A neat example of the socio-ecomonic implications of civil and political rights. Alas, at present, the report isn’t on the Office of Public Advocacy’s website.

• Adult Parole Board Annual Report 2007-2008: The Herald Sun reports that the Justice Simon Whelan, the Board’s Chair – what happened to Murray Kellam? – believes that there are ‘compelling reasons for a continuation of its exemption from compliance with the Charter of Human Rights and Responsibilities’. I look forward to reading the first every public account of those compelling reasons, once the Report appears at the Board’s website. Next week, I’m told.

• Judicial College of Victoria Annual Report 2007-2008: I was expecting this report to be full of information about the JCV’s massive Charter judicial education programme, which has been such a success so far. Alas, there’s only a mention of the Judicial Officers Informaiton Network’s ‘human rights practice page’, which ‘continues to grown as the jurisprduence in this area starts to develop’. I wonder if it gets the date right for Charter s. 49(2)?

• Office of Public Prosecutions Annual Report 2007-2008: This report, available here, contains a special coloured page on human rights. It outlines the non-application of the Charter in the Underbelly case and also the Court of Appeal’s appalling dicta dismissing the Canadian Supreme Court’s view on suppression orders in a throwaway line. (Elsewhere Rapke signals that he wants few suppression orders in future, dismissing the recent rise as a consequence of the gangland murder trials.)

More interesting is a report of a unpublished bail matter:

The applicant Mr B was charged with conspiracy to traffic a commercial quantity of drugs and was required to show exceptional circumstances in order to be granted bail. During the final submissions, the defence raised the issue of delay, stating that the rial was likely to be delayed for two years. As a result, the Charter of Human Rights and Responsibilities and the recent judgment of Bongiorno J in the application of Kelly Michael Gray [2008] VSC 4 were discussed. The DPP submitted that the application should be distinguished on the basis that whilst Bongiorno J accepted that Gray may well have remained in custody for a period in excess of his probable sentence, Mr B was likely to be sentenced to a term of imprisonment well in excess of any potential period of remand. The Magistrate ruled that whilst Mr B had demonstrated exceptional circumstances and that the likely delay would be inordinate, the risks of his re-offending and/or fleeing were unacceptable and could not be alleviated by strict conditions. Accordingly, bail was refused.

A pity these decisions aren’t published, hey?

• VEOHRC’s Annual Report 2007-2008: This report was online yesterday arvo. Good show, VEOHRC! It reveals:

• confirmation that the Commission only intervened in one matter in the Charter’s first six months, the Mirik case, thus casting some doubt on the necessity for Charter s. 35 notices, at least in matters where the state of Victoria is a party (and hence the notice is only for the Commission’s benefit.)

• inquiries about the Chater doubled this financial year compared to last one (which straddled the Charter’s commencment date), from 49 to 95 inquiries. But who knows what they were about?

• the Commission handed out six $5000 grants (from 64 applications) to promote awareness of the Charter. The lucky winners: a mental health seminar, a Charter ESL curriculum, short drama shows for kids (where can I see those? And do they cover Charter s. 38(2)?), young person’ creative responses to the Charter through film, music and design (ditto), a DVD for the disabled and some FRED-focused community service announcements on radio. (“Attention. As of 1/1/7, all listeners have freedom, respect, equality and dignity. Unless you are involved in a proceeding that commenced before 1/1/7.”)

• Most interesting of all, there’s an account of this below-the-radar Charter involvement in an EOA exemption matter:

In the pipeline

A VGSO seminar today on ‘The Charter’s first six months’ (of full operation) actually spent more time on its second six months. The panel consisted of Vic S-G Pamela Tate, special counsel for HR Joanna Davidson and head of the DoJ’s HR Unit, Catherine Dixon. The session opened with the news that Dixon will be shifting to VGSO on December 10th. (Isn’t that Human Rights Day?)

In the main session, Tate described Sabet and Dixon outlined the HR Unit’s work, but it was Davidson’s comments (both opening and in response to questions) that were the most interesting, particularly in describing the following Charter litigation that falls below Austlii’s and the newspapers’ (and therefore my) radar:

• At some point, the Magistrates Court has heard and rejected an application for a stay of a proceeding based on the Charter’s right to a trial without unreasonable delay. A pity that this one isn’t on the record.

• Also, it seems, the Magistrates Court has reverted back to ‘applying the Bail Act‘ after a brief period of following Bongiorno J’s pronouncement in Gray v DPP. Bongiorno’s comments paid too little attention to the Charter to be a stayer, but it’s a bit disturbing that the Magistrates Court can just decide to ignore a Supreme Court precedent. Again, a pity these things aren’t on the record.

• The VCAT hearing reviewing the Mental Health Review Board’s major Charter decision is set down for a week in November. I seem to recall Davidson saying at the Melbourne Law School conference that there was an earlier hearing on the transitional issues. So, does that mean that the transition issues were rejected, sidestepped or postponed?

• VCAT also has another Charter case concerning the interpretation of the Freedom of Information Act‘s public interest exception in light of the Charter’s right to freedom of expression (including the right to seek and impart information.) The A-G, intervening, will argue that the right to seek information only covers willing imparters. In this case, the imparter, Victoria Police, a public authority, isn’t willing. The case will be heard in December.

• The Charter is also apparently being raised by Trevor Flugge (pictured), another notorious Australian adding his name to the select list of early Charter claimaints. Flugge, ex-director of the Australian Wheat Board, is the subject of an action by ASIC for breaches of directorial duties in relation to the Boards dealings with ex-Iraqi president, Saddam Hussein. The action commenced just before Christmas last year, much like BAE’s EOA exemption application that somehow managed to avoid the Charter. But ASIC hardly needs to worry about the Charter.  The proceedings against Flugge are brought under federal law pursued by federal agencies. The only apparent Charter link is that the proceedings are in Victoria’s Supreme Court, but it is only bound by the Charter in its administrative capacities. I’d hold on to that gun, Trevor.

So, some interesting cases on the way, but alas no judgments likely this year. Unsurprisingly, the panel was unfailingly upbeat about the Charter’s implemtation by Victoria’s courts and tribunals, with Tate lauding the gratifying experience of airing human rights issues in Sabet and noting the positive comments HRLRC director Phil Lynch made about the courts’ non-application of the Charter in his own ‘first six months’ report card.

Questions from the audience almost entirely came from Victoria Police and VCAT employees. Davidson calmed the former with some hair-raising stories of non-torture cases from New Zealand, while Tate re-assured the latter that all the confusion about Charter s. 4(1)(j) will be resolved by sufficient contemplation of the High Court’s illuminating separation of powers jurisprudence.

SARC on dust, death and dodgy fish

The Scrutiny of Acts and Regulations Committee’s 13th Alert Digest for the year (considering a record number of bills, at least in recent years) highlights three Charter issues:

• Asbestos Diseases Compensation Bill: SARC queries whether the new procedures designed to take account of the lengthy latency and fatal result of asbestos diseases should be extended to cover non-asbestos diseases with similar charcateristics, pursuant to the Charter right to equal and effective protection against (impairment) discrimination.

• Coroners BIll: SARC expresses its concern that the Bill will amend the Charter’s definition of ‘court’ to cover the newly created Coroners Court, thus bringing the new body within the Charter’s partial exemption for courts and tribunals from the conduct mandate (despite the new body having no role in either developing the common law or resolving private disputes.) SARC will ask the Attorney-General what the (exempt) non-administrative capacities of the Coroners Court would be and whether there are any ‘exceptional circumstances’ (a la the override provision) that justify a permanent narrowing of the Charter’s protection for human rights.

• Primary Industries Legislation Amendment BIll: SARC commends an excellent statement of compatibility, but also has (what, for it, are) strong words about one provision, which significantly extends an existing offence of selling or possessing an illegally taken fish to cover selling or possessing a fish that has ever been illegally ‘dealt with’ under any Australian law. ‘Dealt with’ includes just about anything anyone ever does with the fish, including transporting and possessing it.  SARC has two concerns: First, that the existing offence includes a reverse onus on the issue of whether the defendant knew or ought to have known of the illegality. This is especially concerning, because the offence applies to consumers, not just commercial operators, and it carries a potential six month sentence. Second, the headings of both the existing provision and the amendment only refer to sale, not possession, so people who plan to possess a fish will have to read the text of the provision to know that they risk prison unless they can prove that they didn’t know about any illegal dealings. The strong words:

The Committee therefore considers that clause 68 may be incompatible with the Charter.

 SARC referred the issue of compatibility with Charter s. 25(1) to parliament and will write to the Miister about the headings (and the otherwise excellent statement of compatibility.)

A question of reputation

Black Inc Books, mysteriously undeterred by my negative-reviews-only policy, and the fact that I only review Charter books, has sent me a free copy of A Question of Power by Michelle Schwarz on the allegations that Geoff Clark raped several women in the early 1970s. I’ve followed this story with some interest since the allegations were publicised in 2001. Moreover, I was in Warrnambool recently speaking on the Charter at a Deakin Law School conference and was curious to know why such a scenic and well-located town isn’t better regarded as a holiday destination in Victoria. The Warrnambool tourist agency won’t be a big fan of this book, with its hair-raising claims of rape gangs roaming the streets in the 1970s and racists sipping lattes in the cafes in the 2000s.

But I’m a big fan and will definitely look up Schwarz’s other book, on the death of David Hookes. While the ‘true crime’ genre should be a natural for my interests, I’m no fan of blood-soaked yarns about nasty criminals, screeds against institutionalised racism or a cheap shot dig at the justice system. So, A Question of Power is my kinda crime reporting book, featuring detailed interviews with all parties and careful analysis of transcripts, including letting the subjects and, especially, the transcripts do most of the talking.

Writing about rape allegations is a very tricky thing for rights-oriented folks. Our instinctive reaction in favour of criminal defendants runs hard up against our knowledge of the sexism and nastiness of the criminal justice response to rape. Trying to stay true to both instincts is hard. I did my thesis on the presumption of innocence in rape trials in an attempt to walk the tightrope, and more recently tried to find commonalities in the legal wrongs done to each side in DNA cases. Schwarz, a former lawyer, doesn’t leap for the objectivity of legal analysis and policy arguments. Instead, she delves into the significant credibility issues on both sides. Her account of Carol Stingel’s tale shows clearly how compelling Stingel’s case is. Equally her examination of not just the federal and country town politics involved in Clark’s case but also the politics within Framlingham (home of Clark and a rival family including his other main accuser) is revelatory. She doesn’t reveal her conclusions (though it’s clear that she doubts Jo McGuiness’s tale) but I’d like to think that all the parties she interviewed (which is all of them apart from politicians), and especially Clark and Stingel, would think that her account was fair. That’s no mean feat!

Schwarz’s major opinions are reserved for Andrew Rule, author of ‘Power and Rape’, the newspaper article that aired the revelations, basically ending Clark’s career. I was very unhappy with Rule’s article when it came out, but my views have softened on airing accounts of crimes outside the judicial process. Schwarz’s argument focusses, not on the airing of the allegations, but on the lack of balance in Rule’s article. Most notably, she argues that it omits all of the bitter Framlingham politics that surrounded McGuiness’s claims. Unfortunately, the Walkley-award-winning article doesn’t seem to be available on the net, so I can’t check her account, but if it’s true then the article isn’t an account, but rather an attack. The Charter has something to say about such attacks:

13 A person has the right-… (b) not to have his or her reputation unlawfully attacked.

Of course, Rule isn’t bound by the Charter, although his article might (might!) run into trouble under the ALRC’s privacy proposal. According to Schwarz, Rule was initially happy to talk with her, but cut off contact once she revealed that her book wouldn’t have the same tone as his article. If that’s true, then Rule is a tool.

But what about the other sort of rule that is implicated in this story?: the Victorian laws that facilitated Stingel’s successful civil claim against Clark, which added the state’s imprimatur to the allegations aired by Rule.

Hinch’s challenge

A prediction of mine (and kinda-sorta another) came true today. The Age reveals:

Broadcaster Derryn Hinch plans to launch a Supreme Court challenge against five charges of breaching suppression orders by naming two pedophiles. Hinch’s barrister Peter Faris, QC, told a Melbourne court today his client would challenge the validity of the suppression orders made in the Supreme Court. Mr Faris said Hinch would claim the law under which he had been charged was in breach of Victoria’s charter of human rights and responsibilities. Hinch would also claim it had removed his right of freedom of speech, the freedom of the press and to the system for open courts.

Hinch was charged after he named the sex offenders at a public rally in June and named them in an article on his website. Police later charged Hinch with having published or cause to be published material which identified an offender in contravention of suppression orders made in 2007 and this year. Mr Faris described as “somewhat farcical” that the Department of Justice would now have to apply to the County Court to have the suppression orders varied so the case against Hinch can proceed. Prosecutor Lisa Mendicino told Melbourne Magistrates Court that the Director of Public Prosecutions was not a party to the making of the suppression orders and therefore could not vary them. Hinch said outside court he believed that what he had done was “morally right” and that the court would decide whether he was legally right or wrong. Magistrate Sarah Dawes adjourned the charges until November 20 to allow Hinch’s lawyers to be supplied with the police brief.

And here’s the Hun:

BROADCASTER Derryn Hinch says he was morally right to publicly name pedophiles despite facing criminal charges for it. Hinch today faced court for allegedly breaching court orders banning the names of convicted sex offenders being released to the public. His lawyer Peter Faris QC told Melbourne Magistrates’ Court his client would take his fight against the five charges to the Supreme Court. The charges allege breaches of County Court suppression orders protecting the identities of two pedophiles that have been released from prison. He is accused of publishing their names on his website http://www.hinch.net and announcing their identities at a protest rally in June this year. Mr Faris told the court he would be launching a Supreme Court challenge to the validity of the orders his client is charged with breaching, saying they were not made in the public interest. He said the charges were a breach of the Human Rights Charter as they removed his client’s right to free speech and the openness of the courts. Hinch was supported in court by wife Chanel and crime victims’ advocate Noel McNamara. Outside court Hinch said he felt what he had done was morally right but it was now up to the courts to decide if it was right or wrong. Magistrate Sarah Dawes adjourned the case to November.

The relevant law that Hinch will challenge is this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005:

42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order- (a) that any evidence given in the proceeding; or (b) that the content of any report or other document put before the court in the proceeding; or (c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.

(2) An order under this section may be made on the application of a party or on the court’s own initiative.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty: 500 penalty units in the case of a body corporate; 120 penalty units or imprisonment for 1 year or both in any other case.

Back on 1 June 2008, the Sunday Age described me as saying that a judge was likely to rule that provisions of the SSOMA are incompatible with the Charter. I didn’t exactly say that, but I certainly did think a challenge was on the cards:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem.

Alas, I was speaking of orders to confine sex offenders and challenges by said offenders – such a challenge may well be on-foot, not that there’s any publicity about it – rather than challenges by people who don’t like sex offenders and want to tell the world about whether or not such orders have been made (not to mention the identity of the offenders.)

However, two days later, when the story of Hinch’s naming of two offenders broke – and before he was even charged – I predicted that he might make a challenge too, on free speech grounds.

The Charter and committals

Tony Mokbel, perhaps alone amongst the alleged gangsters from Victoria’s underbelly, will have at least some of his charges resolved in proceedings governed by the Charter, assuming the judges running his case get the date right in Charter s. 49(2):

[I]n February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 1901. After the conclusion of evidence, and during the Crown Prosecutor’s address, the accused absconded while still on bail….

Between 27 February 2007 and 20 June 2007, Victoria Police filed in the Magistrates’ Court a further 15 charges against the plaintiff. Those charges included two charges of murder and five charges of trafficking in a large commercial quantity of a drug of dependence. The plaintiff was arrested in Greece on 5 June 2007.

However, Mokbel’s attempt to head-off his coming criminal trials failed yesterday.  In Mokbel v DPP (Vic) & Ors [2008] VSC 433, Justice Stephen Kaye knocked back an application for a stay based on Mokbel’s extradition occurring while his action before the European Court of Human Rights resisting the extradition was unresolved.  Presumably, Mokbel’s Charter action would have been based on his lawyer Mirko Bagaric’s argument that pre-trial publicity means that he cannot have a fair trial.  The ruling didn’t discuss the Charter, but Kaye’s rulings carry mixed news for any furture reliance on the Charter’s fair hearing right.

Kaye’s main holding was that the remedy of a stay for abuse of process is not available for committals. One of the two lynch-pins of his decision is good news for criminal defendans wishing to raise the Charter:

It is useful to commence with the appropriate characterisation of committal proceedings. In Phelan v Allen, the Full Court held that a stipendiary magistrate, in a committal proceeding, exercises a ministerial, and not judicial function, and accordingly an order by him striking out the information and discharging the defendant might not be the subject of judicial review under s 155(1) of the Justices Act 1958. In Grassby v R, the High Court held that a magistrate does not have power to stay committal proceedings as an abuse of process. In reaching that conclusion, Dawson J (with whom Mason CJ and Brennan, Deane and Toohey JJ agreed) recognised that it had been “consistently held” that committal proceedings do not constitute a judicial inquiry, but “ … are conducted in the exercise of an executive or ministerial function”. As such, the role of a magistrate or justice in holding a committal is essentially inquisitorial and administrative. Finally, in Potter v Tural; Campbell v Bah, two defendants sought judicial review of the decision of the magistrate refusing leave to cross-examine certain witnesses in the course of criminal proceedings against them. On review, the primary judge quashed the decisions of the magistrate. That decision was reversed by the Court of Appeal. Batt JA (with whom Tadgell and Callaway JJA agreed) commenced his reasons by stating: “It is established by a long line of authority in Victoria that a magistrate’s order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari … or to appeal under statutory appeal procedures replacing certiorari.”

So, committals aren’t judicial, but are rather ‘ministerial’. Kaye distinguished UK committals on the ground that they determine whether or not charges will go ahead; Australian committals, by contrast, are neither here nor there: an Australian prosecutor can ignore both a positive ruling at a committal (by entering a nolle prosequi) or a negative one (by commencing anex officio indictment.) The point of Australian committals is a bit of a mystery, and they are mostly justified by the opportunity they give defendants for discovery of the case against them.

This issue is relevant to Charter matters, because of the dreaded Charter s. 4(1)(j) partial exemption for courts and tribunals from the conduct mandate:

4(1) For the purposes of this Charter, a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity;…

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

Doubtless, the combination of these rulings and the note to Charter s. 4(1)(j) will be taken to have basically settled the matter. And that’s basically a good thing, as the Charter s. 4(1)(j) is stupid anyway. But I think that there is still room for doubt.

The Charter in the suburbs

VEOHRC’s Charter report card, ‘First Steps Forward‘, revealed that many local councils – compellingly regarded as at the coalface of the practical implentation of the Charter, given their service delivery role – were yet to even start crawling during the Charter’s first year:

• The sector’s preparedness is particularly low in ensuring that the processes involved in developing local laws comply with the Charter and in raising awareness about the Charter within local communities.
  
• The failure of 25 local councils to respond to the Commission’s survey suggests a lack of engagement with the Charter by some councils that will need to be addressed by councils, peak bodies and state government in 2008.
  
• While recognising the difficulties faced by local councils in engaging fully with the Charter, the sector will need to take stronger action in 2008 to ensure the compatibility of local laws and policies with the Charter and to develop a culture of human rights in local government.

The City of Hobsons Bay didn’t feature on VEHORC’s list of exceptional councils that had taken strong Charter initiatives. However, the latest newletter from the HRLRC brings some good news about the Charter’s impact in the suburbs.

Planning issues involving proposed Islamic facilities are, alas, problematic in Australia. An application by the Quranic Society for rezoning and permission to build a large school in Cawdor attracted considerable media attention, in part because of the involvement of Fred Nile. Cambden Council’s May decision to reject the application, citing a slew of planning concerns, has passed this difficult issue on to NSW Planning and Environment Court. By contrast, an application for rezoning and approval to build a new mosque in Newport West’ Paisley Park has been less difficult. Apart from leafleting by the Australian Protectionist Party, the sailing has been smooth, with a positive report from an expert planning committee and a recent vote in its favour by the City of Hobsons Bay. Is the difference just in the merits of the two applications? Or is this a Sydney/Melbourne thing? Or has the Charter made a difference?

The Panel Report on the proposed Blenheim Road Mosque refers to the Charter prominently in its introduction:

We are conscious that the Charter of Human Rights and Responsibilities seeks to protect and promote certain human rights by placing obligations on all public authorities, including local councils, to act in a way that is compatible with human rights and to give proper consideration to relevant human rights when making decisions. Of particular relevance in this situation are the rights to freedom of religion including communal religious observance, and cultural rights….

We are also conscious that any limitations on the exercise of a human rights must be carefully considered and should be the least restrictive means available to achieve the intended purpose. Our consideration of both the Amendment and the Applicaiton recognises the human rights prooteced by the Chater of Human Rights and Responsibilities and takes into account the obligations placed on public authorities.

The Charter gets a further express mention in the discussion of the proposed rezoing of Paisley Park from Education to, in part, ‘Private sports grounds and ethnic community establishments’ (allowing the construction of a mosque) and, for the remainder, ‘Public Park and Recreation Zone’. In addressing the question of whether this rezoning is ‘strategically jusified’, the Panel introduces the discussion by stating:

[T]he Charter of Human Rights and Responsibilities establishes an obligation to ensure that people can practice their religious beliefs, including communal reigious observance.

This is a pretty strong statement of the effect of the Charter! It depends on the interaction of two Charter provisions:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including-… (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.

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.

Remembering that ‘act’ is defined to include ‘failure to act’ and a ‘proposal to act’, there is a lot going for the Panel’s view that Councils are obliged to do what they can to allow local religious groups to worship (and teach) in a communal way. Presumably, that would extend to making planning decisions that faciliate buildings for that purpose, at least where existing buildings don’t serve local needs. That is the case here:

It is clear from submissions and inspections that the existing mosque serves an established religious community but is too small to meet their needs. Further, the converted warehouse and dwelling provide substandard facilities for worship. Some of the inadequacies include insufficient and impractical space, poor ablution arrangements, and the effective exclusion of women from worship at the mosque.

But what about the defences to the conduct mandate?

The Charter’s complex war on terror

Re Kent [2008] VSC 431 is the first Supreme Court Charter bail case since Kelly Gray became the first ever Charter beneficiary. Remember when judges were using the Charter to grant bail to people with long waits for their trials, without any care to the niceties of the statute’s application, notice, operative or remedies provisions?

Although neither counsel mentioned the Charter in his or her submissions and no argument based on its provisions was put, either by the applicant or by the Crown, the provisions referred to would appear to be highly relevant to the question of bail… If the Charter in fact guarantees a timely trial, the inability of the Crown to provide that trial as required by the Charter must have an effect on the question of bail. It would be difficult to argue that a trial which may well be not held until after the applicant had spent more time in Custody than he is likely to serve upon a sentence would be a trial held within a reasonable time. The only remedy the Court can provide an accused for a failure by the Crown to meet its Charter obligations in this regard (or to ensure that it does not breach those obligations so as to prejudice the applicant), is to release him on bail – at least the only remedy short of a permanent stay of proceedings.

Ah, but the Charter’s a tougher, much more negative statute these days:

The applicant was arrested and charged with the offences on 8 November 2005 and has remained in custody since… The applicant was placed on trial before Mr Justice Bongiorno on 4 February 2008… On 16 September 2008 the jury announced that it was not able to reach a unanimous decision in relation to the case of the applicant… The applicant has been remanded for retrial and that trial would be unlikely to commence before the middle of next year. He will have been in custody for three years on 8 November next.When application was first made to this court, reliance was placed upon the Charter of Human Rights and Responsibilities Act 2006. Notices were duly given. When the matter first came on for hearing on 7 October 2008, counsel for the applicant Mr J.V. O’Sullivan abandoned that argument. It would seem as a matter of statutory interpretation it was doomed to failure in any event.

Now, instead of judges raising the Charter themselves, lawyers do the raising, and then engage in some Foucaudian self-discipline, hurriedly disowning any reliance on human rights before a judge can tell them off for doing so. That of course doesn’t stop the judge from swatting the Charter away like an annoying mosquito, without even bothering to spell out what the problem is. 

Whereas Gray was charged late last year with a bog standard crime (aggravated burglary involving a baseball bat), Shane Kent was charged three years ago with the terrorist offences (achieved by providing a ‘resource’, possessing a ‘document’ and joining an ‘organisation’, all with the requisite links to a terrorist act, albeit not any act in particular.) These circumstances pose two apparent difficulties for terror defendants like Kent when it comes to relying on the Charter:

First, Kent is a federal criminal defendant. The Charter’s interpretation mandate doesn’t apply to federal statutes and its obligations mandate doesn’t apply to federal authorities. That being said, Australia’s constitutional arrangements do raise some interesting questions about the application of the Charter to the laws governing Kent’s prosecution:

• Federal criminal law: The Commonwealth’s Criminal Code, like other federal statutes, is beyond the reach of the Charter’s interpretation mandate, which is limited to statutes ‘passed by the Parliament of Victoria’. But there’s a complication in this case, because the Commonwealth provisions, to the extent that they fall outside of regular federal constitutional powers, depend on a reference contained in a state statute: the Terrorism (Commonwealth Powers) Act 2003. Its referral is limited to a schedule setting out offences, including the ones Kent is charged with, and amendments to those offences. The Charter, of course, applies to the state statute, which raises some fascinating (if marginal) issues about the effect of a new interpretation rule on an existing referral statute. 

• Federal criminal procedure: Kent is subject to a federal provision reversing the usual presumption in favour of bail and instead barring bail unless there are exceptional circumstances. Again, the Charter cannot directly apply to the federal statute. But query whether s68 of the Judiciary Act, a federal provision that ‘picks up’ state laws ‘respecting… a procedure… for holding accused persons to bail’ therefore picks up the Charter’s rights with respect to bail and relevant operative provisions giving those rights legal effect. Given that the interpretation mandate is limited to Victorian laws, I guess that it still can’t apply to the federal bail law. Likewise, the conduct mandate is limited to Victorian public authorities. The only such authority is, of course, the Supreme Court itself, but it is only bound in its administrative capacities. Is bail such a capacity? Anyway, the Cth DPP more or less conceded that the enormous delay faced by Kent – who has only faced one of his three charges to date, and the jury hung on that after a six month trial, and who won’t be retried to next year – was an exceptional circumstance under the Cth law.

• State criminal procedure: As it happens, the Cth DPP’s argument that Kent shouldn’t get bail rested on a state law: a routine provision of the Bail Act 1977 (Vic), which bars bail if there’s an ‘unacceptable risk’ that Kent could skip bail, commit an offence or pervert the course of justice. That provision applies to Kent because of s68 of the Judiciary Act, but surely that section also picks up the Charter, including its interpretation mandate and whatever the Charter’s detainee and defendant rights have to offer? Does the meaning of what is ‘unacceptable’ vary when a person faces four years on remand? 

Are these complex and difficult matters what Justice Paul Coghlan was eluding to when he dismissed the Charter as a ‘matter of statutory interpretation’? Alas, probably not.

Instead, he was presumably referring to the Charter’s very worst provision:

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

This stupid provision, read literally, bars all of the Charter’s protections forever to any criminal defendant charged before 2007. That includes the application of the Charter to questions that arise long after the Charter’s commencement date, like the question of Kent’s bail following his failed 2008 trial on one of his charges. What possible justification is there for allowing Kelly Gray, charged late last year and requesting bail early this year, to rely on his Charter rights against delayed trials, while barring Shane Kent, charged three years ago and requesting bail right now, from relying on the exact same rights? Alas, ours is not to reason why, but instead to apply Charter s. 49(2) as a ‘matter of statutory interpretation’. 

But did Coghlan interpret Charter s. 49(2) correctly? There are three reasons why this ‘matter of statutory interpretation’ isn’t so simple when it comes to Kent.

The right to jury nullification

I’m absolutely thrilled at today’s verdict in the trial of Joseph ‘Jihad Jack’ Thomas. This is the second time a jury has examined the case against Thomas and issued a split verdict, clearing him of major terrorism charges and convicting him of trivia. In both trials, the verdict was surprising in light of the evidence, where Thomas confessed to the appearance of being a terrorist, but claimed that it was all a ruse.

While it may be that both juries diligently applied the requirement of proof beyond reasonable doubt, I suspect – and indeed hope – that the split verdicts were deliberate messages aimed at the Australian authorities, expressing outrage at their connivance in conduct that is much worse than anything Thomas is accused of.

There’s been some talk lately of abolishing juries. I’m torn by such calls. The complex task of fact-finding strikes me as ideally suited to professionals, who can be trained for their job and can be expected to provide testable reasons for their decisions. But professionals so often tend to toe official lines. These conflicting criteria for good fact-finders appear in the Charter’s fair hearing right:

24(1) A person charged with a criminal offence…  has the right to have the charge… decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Lord Devlin beautifully expressed how competence (via the long service of professional life) can be at odds with independence when it comes to the task of finding the facts that connect the law to individuals:

The power that puts the jury above the law can never be safely entrusted to a single person or to an institution, no matter how great or how good. For it is an absolute power and, given time, absolute power corrupts absolutely. But jurors are anonymous characters who meet upon a random and unexpected summons to a single task (or perhaps a few), whose accomplishment is their dissolution. Power lies beneath their feet but they tread on it so swiftly that they are not burnt.

The juries of Jihad Jack managed to accomplish a justice that completely eluded the various institutions involved: the AFP, the Cth DPP, the Supreme Court, the Court of Appeal and the High Court.

The Charter, alas, was inapplicable in Thomas’s trials, due in part to its federal aspects (the involvement of AFP and ASIO, and the federal offences) and also (in relation to state aspects, such as court procedure) because of  the Charter’s appalling transitional provision. If the Charter had been applicable, some weighty rights indeed would have been engaged:

• Charter s. 10 (torture): Not only was Thomas (on all accounts) tortured and degraded at the hands of Pakistani and CIA agents, but Cummins J appallingly admitted confessions he made to escape further torture.
• Charter ss. 14, 15 & 16 (civil freedoms):The ridiculous offence of receiving money from (as opposed to funding) a terrorist organisation, without any requirement to prove an intent to further the organisation’s aims or to commit a crime, would, if it was a Victorian offence, have almost certainly engages the Charter’s rights to belief, expression and association. While these rights can be subjected to ‘lawful restrictions’, that caveat requires that the restrictions be accessible and proportionate. Charging Thomas with an offence that was recently created while he was out-of-contact overseas scarcely meets the first requirement; the 25 year maximum penalty (and the oppressive five-year sentence Cummins imposed) make a mockery out of the second.
• Charter s. 25(2)(b) (right to a lawyer): The AFP told Thomas of his right to communicate with a lawyer, but simultaneously informed him that he couldn’t exercise it (due to Pakistani restrictions.) Their failure to stop the interview then and there is what made his first trial possible, after Cummins appallingly held that compliance with Thomas’s rights wasn’t required in the circumstance. If Thomas had access to a lawyer, he would have been made aware of the new offences (and, of course, advised to exercise his right to silence.)
• Charter s. 26 (double jeopardy): The Court of Appeal, after correcting the erroroneous admission of THomas’s tortured and unadvised confessions, which permitted his first trial, erroneously permitted a second trial, sidestepping a clear High Court authority (not to mention a major ruling of the US Supreme Court) to allow the prosecution to have a second go based on entirely new evidence. The outgoing Chief Justice and Hayne J weren’t bothered.

The new evidence was interviews given by Thomas that were published after his first wrongful conviction. A lot of commentators have glibly observed that Thomas was ‘badly advised’ about giving that interview. But I disagree.

The Charter vs tenants (again)

More bad news from the UK for those who want to use the Charter to ease the legal squeeze on tenants. The England & Wales Court of Appeal in Truro Diocesan Board of Finance Ltd v Foley [2008] EWCA Civ 1162 considered the effect of a provision in the UK’s Housing Act 1988:

34(1) A tenancy which is entered into on or after the commencement of this Act cannot be a protected tenancy, unless—  . . . (b) it is granted to a person (alone or jointly with others) who, immediately before the tenancy was granted, was a protected or statutory tenant and is so granted by the person who at that time was the landlord (or one of the joint landlords) under the protected or statutory tenancy…

This is a transitional provision, designed to preserve an earlier law that prevented landlords from evicting tenants without cause. Desmond Foley leased a church property called ‘The School House’ and fell within a similar protection offered by the predecessor to s34. But, in the late 1980s, he and the church had a falling out and the church tried to evict him. That action was settled, but under an agreement where Foley had to vacate the premises completely and then take up possession again 24 hours later. It’s obvious that the purpose of this agreement was to strip Foley of his statutory protection.

Inevitably, the church tried to evict him and Foley claimed that he hadn’t lost his protection. Most of his arguments were to do with complex statutory interpretation issues involving agreements and the like, but, as a fallback, he relied on the UK’s interpretation mandate and its right to privacy:

Section 3(1) of the Human Rights Act 1998 requires the court, so far as it is possible to do so, to read and give effect to primary and subordinate legislation in a way that is compatible with Convention rights. Mr. Watkinson submitted that eviction from one’s home involves an interference with the right contained in article 8(1) of the Convention and that accordingly the court should read and give effect to the expression “immediately before the tenancy was granted” in section 34(1)(b) as covering the present case in which the new tenancy took effect a little over 24 hours after the expiry of a previous protected tenancy.

But the Court of Appeal unanimously knocked back the human rights argument, citing two grounds.

First, Foley:

was quite unable either to articulate the way in which section 34(1)(b) is to be read in order to give effect to his argument or to identify the principle that would govern the way in which it should be applied. In effect, his argument consisted of little more than the proposition that it should be applied so as to include the present case. I think that would require one to read the words “immediately before” as if they were “a reasonable time before”, but in my view that is not possible because it would fundamentally alter the nature of the subsection.

Personally, I wouldn’t have thought that it was such a stretch to read ‘immediately before’ as including ’24 hours before’. But the Court of Appeal’s objection here is that a new rights compatible reading needs to be based on a broadly expressed principle. It’s not enough to just ask the courts to stretch the words to fit the case at hand. Why not read the words to include a week before, or a year before?

This is an interesting take on what it means to ‘read and give effect to’ or, in Victoria, to ‘interpret’ legislation. It’s not just stretching, you actually need to come up with a new definition that has a rational basis. Arguably, something sort of similar is achieved by Victoria’s gloss, which refers to the need to be consistent with the purpose of the legislation. And, it seems, the EW CofA regards the Ghaidan ‘fundamental features’ test as requiring the same.

Second:

the right to respect for one’s home is qualified by the recognition in article 8(2) of the need to provide for other competing interests, including the economic well-being of the country and the protection of the rights and freedoms of others. The balance between the rights of landlords and the protection of tenants touches on both of these and is essentially one for determination by Parliament.

This is a reference to the limiting language in the ECHR. In Victoria, the language is differently expressed as barring ‘arbitrary or unlawful’ interferences. Victorian courts would also have to take account of both the general limitation provision in Charter s. 7(2) and the purpose limitation to the interpretation mandate.

As I see it, this decision shows that there are potential errors in the main Charter tenancy case to date as well as some reported practice going on without court review. If you ask me, although there’s undoubtedly some work for the interpretation mandate to do in tenancy cases, the real action is going to be based on the conduct mandate. Alas, that is limited to cases where the landlord is a public authority.

The Charter and risk assessment

A second case on the interaction of two major Victorian statutes of 2006, the Charter and the Disability Act, is now online. Both involve supervised treatment orders under the latter statute:

193(3) A supervised treatment order must- (a) state that the Authorised Program Officer is responsible for the implementation of the supervised treatment order; (b) require the person to whom the supervised treatment order applies to reside in premises approved by the Authorised Program Officer; (c) refer to the treatment plan which must be attached to the supervised treatment order; (d) specify the period for which the supervised treatment order is to continue in force, being a period not exceeding 1 year.

The first case, MM (Guardianship) [2008] VCAT 1282, blogged about here, involved a narrow and unusual question: whether or not supervised treatment orders should be made in relation to someone who wants to be treated but, due to an intellectual disability, lacks the capacity to fully consent. Disappointingly, VCAT Deputy John Billings opted for a broad reasonable limits analysis – which, of course, the detention regime passed with flying colours – without applying the interpretation mandate to the specific provision in dispute. The new case, LM (Guardianship) [2008] VCAT 2084, looks at a much broader question about the limits of the detention regime and does a better, but still inadequate, job.

As always, the facts are heartbreaking. Following childhood behavioural problems, LM was diagnosed at the age of 13 with a ‘borderline to mild intellectual disability’ and a plethora of mental disorders, as well as non-epileptic seizures. As an adult, she attracted a criminal record, including for threatening a woman and a child in a McDonald’s toilet (in 2004) and, more recently, walking into traffic, carrying a controlled weapon and offensive public behaviour. She is presently on a good behaviour bond. Within various institutions, her behaviour included secreting knives and walking onto roads, both apparently with intent to suicide; aggression and threats towards staff; and repeated seizures. But there have been considerable improvements in her current location. Nevertheless, her current disability service provider considers it necessarty to lock the front door to that institution about 70% of the time (apparently so that she feels safe); to forcefully return her to the premises on a number of occasions when she climbed the back fence and headed for the road; to restrain her during seizures; and to engage the police to return her to the premises. They obtained an interim supervised treatment order to authorise these measures and now seek a non-interim order.

There’s little doubt that LM is unwell and poses some danger to herself. However, for better or for worse, treatment of those problems depends on other regimes, including other provisions of the Disability Act, the Mental Heath Act and the Guardianship and Administration Act. The supervised treatment order regime,  the sole regime permitting disability service providers to ‘detain’ anyone, is, by contrast, aimed at protecting others. No-one disputes that LM satisfies the threshold eligibility requirements for STOs: she has an intellectual disability, is in residential care and is being treated. But does she meet the core test of being a risk to others?:

191(6) VCAT can only make a supervised treatment order if VCAT is satisfied that- (a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm…

What is ‘serious’ harm? The Disability Act doesn’t define the term, so VCAT Member Julie Grainger looked to definitions in the Cth and ACT Criminal Codes (defining serious harm as either life-threatening or longstanding) and the Migration Act (with a broader definition all sorts of potential hams.) She strangely didn’t consider the definition in in Victoria’s own Crimes Act – probably because it refers to ‘serious injury’, thus avoiding an Austlii search -  but it’s not a very helpful definition.

After noting that there’s a much stronger analogy between STOs and criminal punishment, Grainger opted for the Code definition, observing:

This definition is also compatible with, and promotes the human rights of persons with a disability by ensuring that human rights such as the right to recognition and equality before the law (section 8 of the Charter), the right to freedom of movement (section 12 of the Charter), the right to liberty and security of the person (section 21 of the Charter) and the right not to be tried or punished more than once (section 26 of the Charter) are limited only in the most serious of circumstances.

Fair enough. The reasoning here basically equates compatibility with ‘least possible intrusion’, which is fine, although it doesn’t really go beyond the traditional rule that requires strict construction of provisions that limit common law rights. The Charter supports a more nuanced interpretative approach:

21(2) A person must not be subjected to arbitrary arrest or detention.

(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

An important precondition for avoiding arbitrariness in detention and for ensuring compliance with lawful requirements is for the provision authorising detention to be as clear and precise as possible. So, it’s vital that any interpretation come up with a definition that is not merely minimalist but also not susceptible to widely inconsistent factual applications.

Grainger’s definition strikes me as fitting that bill, but her application of the test to LM strikes me as very problematic.

Some conference papers

The Protecting Human Rights Conference at Melbourne Law School (and jointly run by Mel/ANU/UNSW) has quietly launched its promised webpage of conference papers (with the quiet presumably due to the fact that a number of the papers are ‘coming soon’.) Here’s the site.

For now, you can link to the following:

• Rob McClelland’s opening address (with its notably absent announcement of the federal charter consultation)
• Ed Santow’s short paper on what’s going on outside of the ACT and Victoria in terms of charters: happening federally, more hopeful than they used to be in Tasmania, less hopeful than they used to be in WA, about as hopeful as always elsewhere, with the caveat that the federal charter may be slowing things elsewhere.
• A link to Lord Sedley’s London Review of Books paper (which turns out to be what he read to us on DVD.) The full read is for subscribers only or for purchase! I’d gripe about that, but the conference was very competitively priced. 
• Debbie Mortimer’s comprehensive powerpoints on Charter practice (or non-practice) when it comes to the Charter s.8 equality rights. 
• My paper on Charter practice when it comes to criminal justice, arguing that the Attorney-General’s fear that a future government would repeal his standout achievement is stunting the Charter in practice. People who spoke to me afterwards kept using the words ‘controversial’ and ‘feisty’ (??) That is, those who spoke to my face…

Hopefully, the remaining papers – especially the detailed contributions from Elias CJ and Johanness Chan – will be up soon.

Playing the Charter card

One of the interesting bits of human rights law that is implicit in Part 2 of the Charter is the law about when these rights are gained and lost. People under criminal investigation and prosecution have lots and lots of rights:

21(4) A person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against him or her. (5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with. (6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to appear- (a) for trial; and (b) at any other stage of the judicial proceeding; and (c) if appropriate, for execution of judgment. (7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

25(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 (c) to be tried without unreasonable delay; and (d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and (f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978…

This lengthy list of rights can prove problematic for law enforcement, who have to keep track of what they are meant to say and do.

Famously, the four warnings set out by the US Supreme Court in Miranda v Arizona have appeared on cards that police carry around so that they don’t read the wrong rights.  Ernesto Miranda himself, following his retrial, conviction and sentence for rape, made a living selling signed copies of Miranda cards. He was killed in a bar fight in 1976. And, according to my comparative criminal procedure teacher, the police officer who arrested the alleged killer at the scene picked a Miranda card out of Miranda’s own pocket and read the man his rights (which he exercised.)  So, Justice White was not entirely correct when he famously lamented, in his dissent, that the Miranda ruling would free killers to kill more victims who are “are uncertain, unnamed and unrepresented in this case.”

The other solution is the holdings of overseas courts that not all criminal process rights are automatic and mandatory. Rather, some of them have to be asserted – e.g. habeus corpus – and many of them can be waived, e.g. the  right to be given a legal aid lawyer if eligible. There are lots of overseas cases on whether assertion and waiver apply for particular rights, how assertion and waiver can occur and the state’s duties to work out exactly what is happening. Behind these questions is a difficult policy question about whether criminal process rights are the responsibility of the state or the individuals who have them. The really controversial part of Miranda is its holding that defendants don’t have to assert their right to silence or to a lawyer; rather, they always have those rights until they are expressly and unequivocally waived, in practice by signing an express waiver form. Other countries, including Australia and Canada, don’t go so far, requiring assertions in some cases and permitting implicit and equivocal waivers in others.

But can Australians and Canadians gain American-style waiver rights through the use of the police’s own tool?: a rights card.

Justice Statement 2: Eclectic Boogaloo

Way way back in 2004, Attorney-General Hull’s Justice Statement first mooted the notion of a community consultation about protecting human rights. The statement had just two themes: modernising justice (reforming criminal legislation and so forth) and promoting rights (online legal resources, victims rights, the Charter and so forth.) Even though it was meant to outline goals for 5 to 10 years, Hulls has now released the much-foreshadowed Justice Statement 2, with three additional themes.

Some interesting proposals in the grab-bag:

• Reforming criminal legislation (still), but this time we’re told that ‘stage 1 – criminal procedure’ will be introduced this year. The main idea is one of form, bringing multiple bits of statutes together. That also carries the prospect of reducing cross-institutional inconsistencies (though which way the inconsistencies will be resolved isn’t clear.) But also, the new laws:

will be easier to understand and more effective. For example, changes to appeals process will assist in reducing retrials.

Um, what? How will making appeals processes ‘easier to understand’ reduce retrials? That goal would presumably be better achieved by making trial processes ‘easier to understand and more effective’? But I guess you could reduce retrials by narrowing the grounds of appeal or widening the proviso. Some interesting Charter s. 24 and s. 25(4) issues to deal with, though.

Also potentially tricky Charter-wise: ‘The DNA scheme will be expanded to apply to more offences and to simplify processes for police collecting and retaining DNA.’ I guess that’ll come next year, shortly after the ECtHR brings down its major DNA retention judgment. And also: the plan to modernise the criminal offences in the Crimes Act so that ‘important elements of offences [no longer] apply by operation of the common law’ and are instead ‘written in the offence provision.’ There’ll be some mighty big statements of compatibility when stages 2 (police powers) and 3 (offences) appear.

• Bail Act review: We are told only that ‘[t]he Government will respond to the VLRC report on bail which contained 157 recommendations to simplify the bail process.’ That sounds a touch luke-warm. Do you suppose that these two recommendations will be endorsed?: 

10. The new Bail Act and regulations should comply with not only the provisions but the intention of the Charter of Human Rights and Responsibilities Act 2006 and the Victims’ Charter Act 2006.

12. Bail decisions should be made on the basis of unacceptable risk. There should be no presumption against bail for any offence in the new Bail Act.

• Exceptions to equal opportunity legislation: A current review ‘will inform a major overhaul of equal opportunity legislation’ sometime in 2009. Might be some interesting Charter cases on this question by then.

• Privacy: ‘The Government’s privacy reform agenda will be shaped by: The review of privacy law by the Australian Law Reform Commission’. Including a statutory privacy tort?

• Community engagement: Part of the rhetoric about the unified courtroom is that lay people don’t differentiate between the various courts, so… we should educate them about the differences? Thank god, no. Instead, ‘a common approach to community engagement should be developed’ by the courts, including webstreaming, providing information to the media accurately, quickly, accessibly and consistently and, my favourite, ‘adopting a common policy for the release of information about cases fore the courts and VCAT, including judgments, sentencing remarks, summaries, transcripts and documents filed by parties to litigation.’ Here’s hoping that the days of the invisible online presence and published judgments of the Magistrates and County Courts are numbered. For all we know, the Charter is being interpreted in those courts several times a day…

• Judicial education: The scheme for ’10 hours of judicial education and professional development each year’ is flagged to include ‘the developments of new areas of law such as human rights law, and the rapidity of change in the legal environment’. Might I suggest devoting an hour or two to ‘reading simple statutory provisions’?

And, while we’re on that happy topic, there’s also this statement:

Legislation should be accessible and easy to read. Ordinary citizens should be able to read an Act and generally understand it. Legislation that is not clear increases the need for costly legal advice. A number of Acts will be reviewed because they have become outdated and difficult to use.

Hey, I know a statute that fits the bill perfectly!

Lost in transition

On October 3rd, Carolyn Evans spoke at the annual ‘Protecting Human Rights’ conference about the Charter litigation to date and pointed out Victorian judges’ and tribunal members’ troubling inability to get a simple date right when reading Charter s. 49(2), a matter that this blog has given a lot of attention. The day before, the Charter’s appalling transitional provision was being debated in the Supreme Court, in a hearing enhanced by the Attorney-General’s intervention. And, just one week later, another misreading for Evans’s list, in Devine & Legg v VCAT [2008] VSC 410.

Readers of this blog will know Charter s. 49(2) by heart:

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

And here’s what Justice David Beach had to say about the application of the Charter:

The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter. This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini and DPP v TY (No.3) as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”. Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic, the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.

This is, for what it’s worth, a new wrinkle in the sad history of misreadings of Charter s. 49(2): instead of simply wrongly assuming that Part 2 commenced the same time as Divisions 3 and 4 of Part 3, Beach just replaces the words ‘Part 2′ with “Division 3 of Part 3′. The result is the same: the reach of the Charter’s appalling transitional provision for proceedings is extended by a year. It’s true that, unfortunately, Devine & Legg (or, more precisely, Victoria Legal Aid) apparently joined in the error. But why on earth didn’t Beach listen to the Attorney-General, who intervened as of right in the proceedings under Charter s. 35 just so the Supreme Court wouldn’t be misled by bad lawyering?

Now, some people will say that Beach J still got the right result. After all, didn’t the VCAT proceedings over racial vilification commence in 2005? Well, they did, but that wasn’t the matter before Beach.

The rights of difficult defendants

A new (non-)Charter case, Devine & Legg v VCAT [2008] VSC 410, is the Supreme Court’s second foray into Victoria’s controversial laws on racial and religious vilification, which include this provision:

8(1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.

Note Engage in conduct includes use of the internet or e-mail to publish or transmit statements or other material.

In the first foray, in the better known Catch the Fires Ministry case, the Court of Appeal rejected a constitutional challenge to the legislation, primarily because it fell outside the scope of the implied right to political communication, but also because it was reasonably adapted to the end of religious tolerance. Doubtless, there’ll be a Charter challenge sometime in relation to freedom of expression, which lacks the scope issue. But not this case, which is instead concerned with the law’s enforcement procedure.

NSW residents Dyson Devine & Vivienne Legg are the authors of the now defunct gaiaguys.net, which contained numerous allegations of crime and corruption, including the claim that Ordo Templi Orientis, whose members follow a religion called Thelema, are pedophiles. Given their views – and tendency towards conspiracy theories – it’s perhaps unsurprising that they weren’t amenable to the conciliation process envisaged for complaints under the Victorian law. Nor, as it turns out, were they cooperative when the case moved to VCAT, refusing to respond to any part of the proceedings, although their angry comments on their website showed that they were well aware of them. Their non-compliance in some ways detracted from the force of Deputy President Anne Coghlan’s ruling in July last year that the Act had been breached, as Coghlan simply accepted the unchallenged evidence of OTO and never ruled on whether Devine & Legg had established the defence of good faith public interest commentary. Rather, the main substantive outcome was an order telling them to remove the offending words from their website.

The present matter arose because – surprise surprise – Devine & Legg didn’t follow the order. Where to from here? One option is for the DPP to charge them with the criminal offences in the Racial and Religious Tolerance Act, which carry up to six months in prison. But the other option was to bring a proceeding for contempt of VCAT:

137(1) A person is guilty of contempt of the Tribunal if they… (f) do any other act that would, if the Tribunal were the Supreme Court, constitute contempt of that Court.

(2) If it is alleged or appears to the Tribunal that a person is guilty of contempt of the Tribunal, the Tribunal may- (a) direct that the person be arrested and brought before the Tribunal; or (b) issue a warrant for his or her arrest in the form prescribed by the rules.

(3) On the person being brought before the Tribunal, the Tribunal must cause them to be informed of the contempt with which they are charged and thereafter adopt any procedure that the Tribunal thinks fit.

In October last year, VCAT Vice President (and judge) Marilyn Harbison ordered the arrest of Devine & Legg, who were brought from Coffs Harbour to appear before her on 27th November. As required Harbison informed them of the charge and set the hearing for the following day:

Her Honour: Now you understand that if I don’t remand you in custody, I can still proceed with the matter whether you’re here or not?

Mr Devine: Yes Your Honour, we probably think that would be the best thing under the circumstances since we don’t intend to defend ourselves. We wouldn’t be here now had we not been arrested.

Ms Legg: May I add something to that, Your Honour?

Her Honour: Yes

Ms Legg: The only thing I wanted to add was in regard to determining a prison sentence or whether this should be sentenced on us – I’m sorry, I don’t know the terminology, we would have arguments about naturally the merits of what we’ve done and thus whether we really deserve this but I see that falls under the same category as the other matter of whether we should have been charged in the first place but I would argue the merits of what we’ve done under those circumstances as to why we shoudn’t be treated as criminals.

Her Honour: Yes, thank you. Look, I’m not going to take up the invitation of the applicants to imprison them overnight. I don’t think it’s appropriate. I don’t think there’s anything to be gained. What I propose to do is simply to discharge the warrants. I have explained to the respondents, Ms Devine and Ms Legg, that I will deal with this matter of contempt. I will deal with it at ten o’clock tomorrow morning whether they are here or not.

 When – surprise surprise – neither defendant showed up the next day, Harbison, citing the necessity of enforcing VCAT’s authority, the need to signal that religious vilification will not be tolerated and the need to specifically deter the defendants from further breaches, sentenced them both to nine months imprisonment (i.e. three months more than the maximum for the offence of vilification, but less than a fifth of the maximum sentence for contempt.) The pair, re-arrested in early January, served a month-and-a-half in prison before apologising for the contempt and agreeing to take down the website.

On 21st February 2008, a week before their release, they commenced a judicial review proceeding in the Supreme Court, alleging that Harbison’s decision ‘breached the plaintiffs’ right to a fair hearing under the Charter’.

SARC on conception, caves, councillors and cops

With twenty-three bills introduced into Parliament in just two sittings, eleven last time and twelve this time, writers of statements of compatibility have been getting quite a workout (despite the break for the Abortion bill.) So, too, have writers of SARC reports. 

The latest SARC report raises Charter issues with five bills:

• Assisted Reproductive Technology Bill & Research Involving Human Embryos Bill: Both bills raise the issue of whether embryos have rights and whether the destruction of unwanted embryos and research into unwanted and specially created embryos (of various sorts) are reasonable limits on those rights. In addition, the ART Bill raises issues of:
  • Discrimination on the basis of impairment, sexual orientation and marital status, in that users of assisted reproductive technology have to undergo criminal and child protection checks, whereas natural parents don’t.
  • Freedom of expression, in that a provision intended to ban the commissioning of surrogacy appears to cover public statements about a person’s potential willingness to engage or act as a surrogate, such as this example of public debate
• Greenhouse Gas Sequestration Bill: Is a blanket, uncompensated expropriation of all ‘geological storage formations’ more than 50 feet below Victoria compatible with the property rights of owners of property sold by the Crown prior to 1891 (when the Crown stopped giving away the land deep under Victoria?)
• Local Government Amendment (Councillor Conduct and Other Matters) Bill: Is suspending councillors because of and by reference to unresolved criminal charges compatible with their presumption of innocence (to the extent that one exists outside of the courtroom?)
• Police, Major Crime and Whistleblowers Legislation Amendment Bill: Is the cure for the flawed ban on calling OPI employees as witnesses, allowing them to be called if the DPI agrees, worse than the disease, because it treats state and non-state litigants, including criminal defendants, differently?

SARC also resolved to call for public submissions on the three ART bills, its third inquiry this year.

The Charter vs the ICCPR

During the second reading debate on the ART/Embryo/Cloning bills, the shadow A-G, not a big fan of the Charter or international human rights law, referred to both:

The Attorney-General is a very proud advocate, as we know, of his charter of human rights and responsibilities. That charter is based on the International Covenant on Civil and Political Rights of 1966. Article 23 of that covenant provides that: …

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. The right of men and women of marriageable age to marry and to found a family shall be recognised.

So it seems to me that the international covenant to which Australia is a signatory and has undertaken to the international community to comply with is one that is founded on men and women forming a family and having a right to bring up their children and found a family on that basis….

There’s a reason he cites the ICCPR and not the Charter. The latter provides:

17(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

The differences are no accident. The EM says:

It is not Parliament’s intention to create a right to found a family in the Charter. Parliament intends that the term “families” be given a meaning that recognises the diversity of families that live in Victoria, all of whom are worthy of protection.

The deliberate broad definition of ‘family’ is consistent with the UN Human Rights Committee’s General Comment, which leaves definitional matters to member states:

The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.

The reason for omitting the word ‘natural’ from the Charter, while not spelt out, is presumably similar. Doubtless, it might not have sat all that well with the artificial methods of reproduction contemplated in the Assisted Reproductive Technology Bill 2008. Speaking of artificial, what the hell is a ‘group unit’, anyway?

That the ART Bill was very much in mind was confirmed in the Consultation Committee report,

The consequences of Charter s. 28(2)

The first ever attempt to use the Charter as a point of order in Victoria’s parliament, once again a new use of the Charter prompted by the abortion bill:

Mr Kavanagh — On a point of order, President, the bill mentioned is out of order. The bill was not introduced in this house or in the other house with a statement of compliance with the Charter of Human Rights and Responsibilities. A statement of compliance is required under the Charter of Human Rights and Responsibilities Act before any bill with implications for rights in the charter can be considered by either house of this Parliament.

The minister in the other house and the responsible minister in this house have sought to rely on section 48 of the charter to avoid the need to produce a statement of compatibility. Legal opinion from legal firm Phillips Fox, which opinion is in the public domain, concludes that the minister was mistaken in so relying on that exclusion. Section 48 states in part: Nothing in this charter affects any law applicable to abortion or child destruction … But the bill affects much more than simply abortion and child destruction. The bill also affects a range of other rights that are detailed in the act, including guarantees of equality and non-discrimination under section 8(3) of the charter and issues of rights against unlawful or arbitrary interference with privacy under section 13(a) of the charter. The bill affects freedom of thought, conscience, religion and belief guaranteed under section 14 of the charter. There are also issues about whether the bill raises new criminal offences.

This point canvasses the question of the scope of Charter s. 48, citing not only the legal advice about clause 8 but also, it seems, SARC’s concern about amendments to the ‘serious injury’ offences in clause 10. If these concerns are right, then Charter s. 28(2) has been breached:

28(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(It’s possible that Charter s. 28(1) was also breached, but that depends on whether or not a statement was actually prepared for the Abortion Law Reform Bill.)

But what is the consequence of a breach? As the legal advice correctly pointed out, the Charter only spells out the (non-)consequences if the Bill is passed:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

So, what happens before the Bill is passed? Kavanagh argues:

A required statement was not put before either house and therefore consideration of this bill by this house is out of order. I have several copies of the legal opinion from Phillips Fox for the benefit of members of the house if they so desire; that opinion completely supports my contention.

But the point was rejected:

The PRESIDENT — Order! In response both to the point of order and Mr Theophanous’s rebuttal and to Mr Kavanagh’s further point, I need to remind the house that I adjudicate on matters contained within the standing orders. The issue as to whether or not Mr Kavanagh is correct is a matter for the house. I must say it is a complicated and interesting point of order that Mr Kavanagh has raised, but I am confident in the advice I have been given that I have no authority to rule on that matter; it is simply a matter for the house. Any questions relating to the validity of the act are simply matters for the courts.

The relevant standing order appears to be:

14.02 A Bill not prepared according to the Standing Orders and practices of the Council will be ordered to be withdrawn by the President.

I don’t know enough about the law of parliamentary procedure to know if Kavanagh is correct that the President that compliance with Charter s. 28(2) isn’t part of the ‘Standing Orders and practices’ of the Council. (The incorporation of statements of compatibility into Hansard is part of the sessional orders of the Legislative Assembly, but weirdly not of the Legislative Council; however, the Council seems to follow the Assembly’s ‘practice’.) But, if true, it raises what seems to be a significant gap in those standing orders or practices.

Conference Q&A

One of the best things about human rights laws is the conferences. While I (and everyone I know) doesn’t much like conferences themselves – the locations are another matter – because the papers tend to be narrow, poorly presented and disconnected from one another, human rights conferences tend to produce interesting, connected and (better) presented papers. Friday’s annual Protecting Human Rights Conference was no exception. As the final speaker for the event, I was a bit too distracted to listen carefully to every speech, so I’m looking forward to the papers appearing online (apparently at the end of this week.) Prof. Johannes Chan’s paper, in particular, looks to be a superb and much needed summary of HK human rights cases.

But what did keep me alert was the Q&A’s, where new and interesting things often emerge. Here’s my summary and takes on some of those:

Charter s. 35: Carolyn Evans, in her summary of this-year-in-the-Charter, called for the repeal of Charter s. 35, the Charter’s provision requiring notice to the A-G and VEOHRC of Charter issues in the higher courts, arguing that it hampered making Charter arguments. Pamela Tate and another questioner queried her on that call, citing her comment that the MHRB decisions to date involved not-especially-helpful legal arguments and the supposed inconsistency there. Tate revealed that Charter s. 35 was requested by the courts, who wanted better legal arguments on the Charter. She also suggested that Charter s.35 notices don’t cause delays, citing the weekend turnaround on Sabet’s request for a stay of the HPRB’s decision to suspend him. Evans, in response, mooted making Charter s. 35 transitional but ultimately opted for immediate abolition, referring to the potential for Charter s. 35 to yield government-backed, rather than neutral, legal analysis.

I say: too bloody right. No-one should put the Charter in a corner. Or, to put it more fully (including some of what I said in my own talk):

• The problems of Charter s. 35 in practice can’t be measured by what happens after notices are issued, but rather by the potential for litigants to choose not to issue notices (and therefore make arguments) at all. Sabet, who initiated a Charter-specific claim in the Supreme Court, is hardly a case in point; rather, the relevant concern is a lawyer who thinks up a Charter claim just before or in a trial and is deterred by the threat of a costs order due to the Supreme Court’s appalling Practice Note No. 3 of 2008. More generally, even a short procedural requirement prevents the Charter from being brought up instinctively, regularly and urgently. Why should it be any harder to raise the Charter than any other statute?
• The supposed necessity of legal advice from the A-G & VEOHRC is an insult, not only to other lawyers, but also to the County and Supreme Courts. Why would the State’s most senior judges have so much difficulty coming to terms with a forty-nine section statute that’s been around for over two years now and is the subject of a couple of excellent texts, including an annotation? And what’s the case for treating the Charter differently to other legislation (remembering that the Charter is the weakest statute in Victoria?) The fact that the judiciary asked for Charter s. 35 strikes me as another worrying sign that Victoria’s courts are no enthusiasts for the Charter, and in particular its ubiquitous use in our courtrooms. It makes me wonder: did they ask for Charter s. 4(1)(j) too?
• It’s also worth noting that Evans’s comments about the need for legal advice related to proceedings in the MHRB, not the SC or the CC which are where Charter s. 35 applies.
• The risk of the supposedly helpful legal advice really being the government line in disguise, alluded to by Evans, is all too real. A number of speakers pointed out the lack of funding for VEOHRC to make submissions. Instead, as I argued in my paper, the interventions have all been from the A-G and are all against rights claims. See below.

Charter s. 32: