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.)