Positive obligations under the Charter

Amidst all the excitement here in Victoria, I’ve been neglecting overseas developments. Two cases this week are interesting in the light they shed on the positive obligations in the Charter. At the Protecting Human Rights Conference, I called for the repeal of some nineteen sections of the Charter, including the definitions section. The latter call was a touch painful, because although nearly all the definitions in Charter s. 3 are bad, there is one important but neglected one:

3(1) In this Charter-… act includes a failure to act and a proposal to act

The only Charter provision that uses the word ‘act’ (in its non-statute sense) is the conduct mandate:

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.

This section accordingly sometimes make it unlawful for a public authority to do nothing. I suspect, though, that even without Charter s. 3, the conduct mandate would oblige the government to act in certain situations. The extent of those obligations is quite interesting.

In one case being argued this week before the United States Supreme Court, the issue concerns the obligations of governments to promote free expression by weird-sounding religious groups. One such groups of oddballs, the Fraternal Order of Eagles, likes to donate massive stone monuments of the Ten Commandments for display in public parks. One of its monuments has been duly displayed in a public park in Pleasant Grove, Utah for the last thirty-eight years. The plaintiffs before the Supreme Court are another group of oddballs, Summum, who want the agency running the public park to accept their donated stone monument containing these Seven Aphorisms:

1. SUMMUM is MIND, thought; the universe is a mental creation.
2. As above, so below; as below, so above.
3. Nothing rests; everything moves; everything vibrates.
4. Everything is dual; everything has an opposing point; everything has its pair of opposites; like and unlike are the same; opposites are identical in nature, but different in degree; extremes bond; all truths are but partial truths; all paradoxes may be reconciled.
5. Everything flows out and in; everything has its season; all things rise and fall; the pendulum swing expresses itself in everything; the measure of the swing to the right is the measure of the swing to the left; rhythm compensates.
6. Every cause has its effect; every effect has its cause; everything happens according to Law; Chance is just a name for Law not recognized; there are many fields of causation, but nothing escapes the Law of Destiny.
7. Gender is in everything; everything has its masculine and feminine principles; Gender manifests on all levels.

According to Summum, these are the real message Moses wanted to bring down from Mt Sinai. He was all ready to do so when he noticed the Golden Calf, raced back up the mountain and came back with a dumbed-down translation in the form of the decalogue of depressing and turgidly expressed ‘Thou Shalt Nots’ on the Eagles’ monument. Kinda like the difference between the Consultation Committee’s draft of the Charter and the version that got enacted after the meddlers did their bit. Summum’s case is that the Pleasant Grove City Council is obliged, if it is going to continue to display the Eagles’ version, to also display Summum’s, lest it commit the sin (and First Amendment infringement) of content-based regulation of public speech. The Council’s response is that the Eagles’s monument isn’t public speech, but rather government speech, which can reflect the government’s views. That’s a pretty dicey argument to make in the US, where the government is barred from establishing a religion. Not so scary here for the Victorian government. The appeal is from a 10th Circuit Court of Appeals decision in Sunnum’s favour.

The other case, In Re E (a child) [2008] UKHL 66, decided today by the House of Lords, concerns the limits to the government’s obligation to protect people from things that they have a right against, specifically the European equivalent to this Charter right:

10 A person must not be-… (b) treated or punished in a cruel, inhuman or degrading way

The case concerned a horrific Belfast saga back in 2001, where loyalists in a North Belfast neighbourhood targetted Catholic children walking to and from school down Ardoyne Road, which passes through a Protestant estate in a predominantly Catholic area. There was no challenge to the police’s initial step of banning kids from the road altogether. Rather, the case concerned their longer term strategy:

When the new term commenced in September the police had been able to consider what strategy they would follow and what expedients they might adopt. A decision was made by them that their overriding priority was to do everything possible to enable the parents to take their children to school on foot along Ardoyne Road…. The expedient adopted was to station police and military vehicles along both sides of the road, creating a corridor through which the group of children and parents could walk. Police and soldiers were deployed on the protesters’ side and escorting police officers carrying long shields accompanied the group to protect them from missiles. This tactic proved successful, to the extent that no injuries were sustained by any children.

It was argued and accepted that this tactic, while protecting the kids’ lives, still exposed them to degrading treatment. At issue was whether the police should have done more to protect the kids, by barring the protesters from Ardoyne Road altogether.

Three new (non-Charter) rights for Victorians

Amendments to the Equal Opportunity Act 1995 came into force today re-defining discrimination to include the following conduct:

• unreasonable refusals by employers/principals/firms to accommodate the responsibilities that (a) people offered employment (b) employees (c) contract workers; and (d) partners in firms; have ‘as parents or carers’.
• refusals by people who provide accommodation to allow a person with an impairment ‘to make reasonable alterations to that accommodation to meet his or her special needs’
• refusals to ‘provide accommodation to a person with a visual, hearing or mobility impairment because that person has a guide dog’, including requiring that the dog stay elsewhere or charging a special fee

Unlike the previous amendments to the Act, these new rights do not add to or widen the definition of Charter rights. That’s because, while the Charter picks up the definition of discrimination in the EOA, it only does so in relation to discrimination on the basis of an attribute:

3(1) In this Charter… discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 1995) on the basis of an attribute set out in section 6 of that Act

However, the new anti-discrimination rights in the new amendments alter the definition of discrimination to create a new ‘conduct-based’ sort of discrimination that is different to discrimination on the basis of an attribute. Here are how the alterations look:

3 The objectives of this Act are- (a) to promote recognition and acceptance of everyone’s right to equality of opportunity; (b) to eliminate, as far as possible, discrimination against people by prohibiting discrimination on the basis of various attributes; (c) to eliminate, as far as possible, sexual harassment; (d) to provide redress for people who have been discriminated against or sexually harassed.

7(1) Discrimination means direct or indirect discrimination on the basis of an attribute or a contravention of section 13A, 14A, 15A, 31A, 51 or 52.

It seems clear enough that the Charter’s concept of discrimination is now narrower than the EOA’s. Why – and why the Charter’s definition has to be tied to the EOA at all – remains a mystery. Of course, it might be arguable that roughly similar rights flow from Charter s. 8 (in relation to discrimination on the basis of impairment) and Charter s. 17 (protection of families and children.)

Dodging a dodgy argument (dodgily)

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

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

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

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

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

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

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

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

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

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

The scope of the interpretation mandate

The Charter’s two most feted (and, to date, little-used) provisions are its interpretation mandate:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

and its declaration power:

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

These provisions won’t turn Victoria’s more draconian laws into rights-friendly ones. But it may ensure that, when parliament expresses itself flexibly, unclearly, unintelligibly or thoughtlessly, the courts will have good reason to resolve the mess in a rights-friendly way. And, when the mess can’t be resolved, the courts can raise a (small) stink about it.

But when do these special rules apply? Their scope is only as wide as the term ‘statutory provision’. That’s defined in the Charter as follows:

statutory provision means an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument

And what’s an ‘Act’ or a ‘subordinate instrument’? These words are defined in the Interpretation of Legislation Act 1984, which self-referentially tells us:

38 In all Acts and subordinate instruments, unless the contrary intention appears-

Act means an Act passed by the Parliament of Victoria…

subordinate instrument means an instrument made under an Act- (a) that is a statutory rule; or (b) that is not a statutory rule but- (i) contains regulations, rules, by-laws, proclamations, Orders in Council, orders or schemes; or (ii) is of a legislative character…

Seems pretty wide? But it’s not as wide as the ACT, whose interpretation mandate also covers:

• old acts of other legislatures (the UK, the Commonwealth and NSW) that were grandfathered in when the ACT got self-government
• instruments that are not legislative in nature that are made under an Act or instrument or a power under given by any law

The former covers things like the Magna Carta while the latter covers things like search warrants. In the ACT, but not in Victoria, these things can now be re-interpreted under the new mandate.

Still, some laws that apply to Victorians will miss out. The two most obvious ones are the common law and Commonwealth statutes. In its Alert Digest No 6 of 2008, SARC picked up a third category.

The gap in Charter rights for children

A County Court judge has raised a concern about a gap in the Charter, according to The Age:

A JUDGE fears that protections for young offenders under Victoria’s charter of human rights face possible “destruction” because of frequent delays in the court system. County Court Judge John Barnett said yesterday that delays meant it was common for people to be sentenced as adults for offences committed as youths. He said it was strongly arguable that such situations breached the Charter of Human Rights and Responsibilities.

Judge Barnett yesterday sentenced Brent Carl Ryan, 21, to a community-based order after he pleaded guilty to a charge of affray over an incident in July 2004, when he was 17. Judge Barnett said that Ryan’s case, although promptly investigated, took nearly four years to get to court. As a result, Ryan “lost the opportunity of being sentenced to a youth training centre”. The judge said he was greatly concerned about youth binge drinking, but was more concerned about the “delay of proceedings we are experiencing in this state”.

Although the charter did not exist at the time of Ryan’s offence, and he was then not a “child in the eyes of the law”, the “same cannot be said if a similar case were to arise in the near future”. “When a child loses the right to be sentenced under those procedures that take account of the child’s age and the desirability of promoting the child’s rehabilitation — namely the youth training centre — their rights (under the charter) have been destroyed.”

The judge’s comments appear to raise these provisions of the Charter:

3(1) child means a person under 18 years of age

23(3) A child who has been convicted of an offence must be treated in a way that
is appropriate for his or her age.

25(3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

A tricky problem in juvenile children’s justice is that being a child is a transient phenomenon. Children age and become adults. When that happens while the criminal justice system is still proceeding, do you treat them according to who they were or who they are?

Victorians get five new Charter rights

Monday saw a first in the Charter’s short history: the addition of five new rights.

The five new rights are:

• the right to enjoy your human rights without discrimination on the basis of employment activity
• the entitlement to equal protection of the law without discrimination on the basis of employment activity
• the right to equal and effective protection against discrimination on the basis of employment activity
•  the right of children to protection according to their best interests and needs without discrimination on the basis of employment activity
• the entitlement of criminal defendants to minimum due process guarantees without discrimination on the basis of employment activity

That being said, the key term ‘employment activity’ has a pretty narrow definition. It refers only to the acts of employees making reasonable requests and expressing concerns about their employment entitlements.

While the creation of new rights is only a once-a-decade occurrence in many countries, and more like once-a-century in the US, it is likely to be a much more routine event here. The reason is a happy byproduct of a more dubious aspect of the Charter: its penchant for tying the definition of some human rights to other Victorian statutes. The two examples are the right to legal aid ‘under the Legal Aid Act 1978‘ if eligible under that act; and the various rights against discrimination, as that term is defined in the Equal Opportunity Act 1995. This Monday’s new rights arose automatically with the commencement of an amendment to the latter act passed in May last year.

Alas (but obviously), this momentous event in human rights law is built on some less-than-momentous politics: