The consequences of Charter s. 30

Since 1st January 2007, every bill introduced into the Victorian Parliament except one (the Abortion Law Reform Bill) has been accompanied by a Statement of Compatibility. And every bill has been the subject of a report from SARC. Every bill, that is, except two bills introduced into Parliament last week, which have already passed and will, presumably, very soon be Acts.

One bill is the Salaries Legislation Amendment (Salary Sacrifice) Bill 2008, which got its first, second and third readings in both chambers on Tuesday. The bill’s purpose is to allow parliamentarians and various constitutional officers to salary sacrifice. That is basically a tax dodge, whereby part of your pre-tax income is used to buy something or contribute to super. I’ve never understood why the tax office allows this. Anyway, the legal complication is that it involves, at least technically, a salary reduction, hence the need for clarifying legislation. It’s good to see that Parliament was so concerned about the ability of judges to salary sacrifice that they rushed through the legislation. But. ‘reducing’ judicial salaries is always tricky thing. (Indeed, on a complete side point, salaries full stop are a tricky thing. Hillary Clinton’s appointment as Secretary of State has raised US constitutional concerns because of the ‘emoluments’ clause, which bars sitting congresspersons from being appointed to public offices that have had a pay rise during their term. The job of Secretary of State had a cost-0f-living pay increase earlier this year. The proposed solution – pioneered by Nixon! – of reducing the salary before Clinton takes office hasn’t satisfied all the constitutional law experts.)

The other bill is one I recently posted about, fixing the ‘loophole’ in the taxi driver registration scheme for people like XFJ who were acquitted on insanity grounds prior to 1997. It passed yesterday, but not before the Greens bemoaned the lack of a report from SARC:

The second issue is that this bill, which raises important questions of the Charter of Human Rights and Responsibilities — questions that require considered thought, pondering, research and consultation with experts — has not been to the Scrutiny of Acts and Regulations Committee.

The reason for the rush, as the government candidly admitted, was the coverage of XFJ in the Herald Sun. In the end, the Greens were satisfied with a reference to the Council’s Legislation Committee, which immediately considered the bill and approved it. 

The result of these events is, arguably, a breach of a provision of the Charter:

30 The Scrutiny of Acts and Regulations Committee must consider any Bill introduced into Parliament and must report to the Parliament as to whether the Bill is incompatible with human rights.

The use of the present tense arguably implies that the report must occur while a bill is a bill. That also makes sense as a matter of policy, as the whole point of SARC scrutiny is to advise parliament in its deliberations on whether or not to enact a bill. All too late now.

So, what are the consequences of a breach of Charter s. 30? This issue is the subject of another curious drafting quirk in the Charter. Every other parliamentary event required by the Charter is the subject of an express savings clause providing that a failure to comply with it has no impact on the validity of a law:

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.

31(9) A failure to comply with subsection (3) or (5) 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.

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made; or (b) create in any person any legal right or give rise to any civil cause of action.

So, statements of compatibility, the procedures for override declarations and the procedures following declarations of inconsistent interpretation can all be breached without any possible consequences for validity. Does the absence of such a provision for SARC reports imply that their absence might have consequences for validity or at last found a ‘legal right’ or a ‘civil cause of action’? Oooh. It’s hard to see why SARC’s reports should somehow be more important than these other processes, of course. But maybe it’s another fun Charter argument that XFJ could raise when the question of his accreditation comes up for further litigation. See my earlier post on Charter claims involving Parliametary breaches of the Charter.

That being said, there is a mechanism that would seem to permit SARC to report on both of these statutes eventually.

The end of DNA database expansion

Back in March, I referred to a DNA database case before the European Court of Human Rights as the human rights case of the decade, pitting the clearest principles against the clearest practicalities. The House of Lords had unanimously ruled in favour of the practicalities, with one of the Law Lords, Simon Brown, issuing a concurrence just to say:

My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

Yesterday,  the seventeen judges of the European Court’s Grand Chamber unanimously upheld that very challenge, ruling firmly in favour of principle. It’s a stunning development that will put both DNA databases and human rights law at a crossroads.

The applicants in S & Marper v UK [2008] ECHR 1581 were both residents of Sheffield. In early 2001, at the age of 11, LS was arrested on a charge of armed robbery. Two months later, Michael Marper was arrested on a charge of harassing his partner. On June 14th, both were cleared, S by acquittal, Marper by a notice of discontinuance after he reconciled with his partner. Both then asked for their fingerprints and DNA, taken on arrest, to be destroyed, but the police refused, saying they wanted to retain the information for use in future criminal investigations. The police’s plan was made possible by a 2001 change in UK law, following an unsuccessful attempt by two people linked to crimes after their DNA should have been destroyed to challenge their convictions. The new amendment to the Police and Criminal Evidence Act (PACE) allowed the permanent retention of fingerprint and DNA samples in most circumstances:

64(1A) Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution.

Subsection (3) required the destruction of DNA taken from people never suspected of an offence (e.g. bystanders, such as residents of a burgled house who DNA is taken to eliminate irrelevant crime scene samples.) So, PACE s64(1A)  allowed the retention of all suspect samples, even when the suspects were cleared. S & Marper’s challenge to the police’s decision under the Human Rights Act was dismissed, in turn,  by a trial judge, the Court of Appeal (in a 2-1 decision with Lord Sedley dissenting) and the House of Lords, before today’s stunning reversal by the ECtHR.

The European Court’s decision was based on the ECHR’s right to privacy:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argued that the only way that DNA can interfere with privacy is at the time of sampling (it wasn’t disputed that S & Marper were lawfully and, it seems, properly sampled) and at the time of matching to an unsolved crime (when the relevant privacy right is the unfortunate right to get away with such crimes undetected.) But the ECtHR has long held that the mere storage of data can amount to an interference with privacy, depending on its content and context.

So, is the storage of DNA and fingerprints an interference? The ECtHR held that this test was satisfied for biological material (because of the wealth of genetic information it contains), the tiny DNA profiles on databases (because they can still be used to show relatedness and ethnic origin) and (overturning an earlier ruling) fingerprints (because they are stored on a computer allowing precise identification in a variety of circumstances.) It’s a little funny that the ECtHR’s reasoning on the most significant and contentious data, DNA profiles, was tied to some relatively recent side-uses of DNA profiles: familial screening (used to trawl the database for ‘partial’ profile matches, yielding possible relatives of the source of a crime scene sample. This technique was notably used to catch the UK’s ’shoe rapist’, who was detetected after a partial match to his sister, who was sampled after arrest for drink driving), possibly infringing family life too, and ethnicity tests (most famously used to identify London’s gerontophile rapist as Carribean, mostly likely frm the lower Winward islands.) Would cutting out these techniques save the UK database? Probably not, because the ECtHR’s reasoning on fingerprints (which have no such side-applications was based solidly on its traditional identification use, including the utility for computer assisted identification. DNA profiles, being digital, rather than analogue, are much more suited to comptuer-assisted identification (and, indeed, that is by far their primary database use.) I don’t know why the Court didn’t apply the same reasoning for both profiles and fingerprints. Anyway, the finding that retention of any of these things in an identifable form on a crime detection database breached Article 8.1 was a no-brainer (although, alas, a number of UK Law Lords failed the test.)

The really hard question is Article 8.2, i.e. justification. There’s no doubt that s64(1A) exists ‘for the prevention of disorder or crime’ (although some see the potential other uses as a big point.) But is retention ‘in accordance with the law’ and ‘necessary in a democratic society’? The ECtHR had some concerns about the former, because one of the s64(1A)’s use restrictions – ‘the prevention of.. crime’ – is alarmingly vague (ableit tracking Article 8.2 precisely!) But the Court didn’t decide that point, instead focussing on necessity. The Court, while skeptical of statistics from the UK showing the number of crimes, notably murders and rapes, supposedly solved through database matching to profiles retained from cleared suspects, acknowledged that retention would contribute to crime prevention and detection. However:

The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed…; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Court’s conclusion was that ‘the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.’

So, that’s the judgment. But what’s really interesting are the implications: