Wrapping up 2008

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second-] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn't inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here's a short take on a new 2008 case that has appeared on Austlii:

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case.

A very Charter Christmas

It must be the silly season, because why else would The Age cover the Charter?:

STUDENT squatters will try to use Victoria’s charter of human rights to stop their eviction from Melbourne University-owned buildings. The students — who have been occupying the Faraday Street terrace houses in Carlton for the past four months — were summonsed to appear in the Victorian Supreme Court yesterday for an eviction hearing. The Student Housing Action Collective want to use the terraces to create a student housing co-operative, but the university wants to develop it into off-campus student space.

Teishan Ahearne, from the collective, accused the university of using the Christmas break to move against the squatters. “The university is playing Mr Scrooge, attempting to evict homeless students on the eve of Christmas. Their actions are utterly unjust and sneaky,” she said. Yesterday the court heard that the university had begun the proceedings to comply with a building notice issued by the City of Melbourne. That notice said the buildings had to be vacated by January 7.

But Chris Povey, for the students, said his clients would seek to invoke Victoria’s charter of human rights to prevent the university from moving them on. He told the court that should the students be evicted many of them faced homelessness. Justice Cavanough agreed to adjourn the hearing to January 5, but ordered any applications under the human rights charter had to be filed with the court by December 30.

So, the students can spend Christmas in their terrace houses, but, thanks to nasty Charter s. 33 and Practice Note No. 3, they’ll have to spend their holidays swatting up on the Charter.

Alas, as I’ve discussed several times on this blog, the intersection of tenancy law and human rights law is a perfect storm of the Charter’s curmudgeonly operative provisions:

• First, the students need to find a right that has been breached. In conrtast to some of the more heartrending (or maddening) human rights tenancy cases of yore, this one doesn’t seem to involve any families or kids, so Charter s. 17 won’t help. Nor are there discrimination issues. So, everything will have to rest on the narrow shoulders of Charter s. 13(a)’s right against arbitrary interferences in the ‘home’.

• Second, there’s the problem that the Residential Tenancies Act’s statutory language isn’t exactly amenable to re-interpretation to prevent ‘eviction into homelessness’. And there’s also the problem that any such friendly interpretation will be contrary to the rather unfriendly purposes of statutory tenancy law (and, if Hansen rules, may go further than the reasonable limits jurisprudence allows.) (I’ll take the students’ word that they have nowhere to go, though it does remind me of some former friends from my uni days who stole from the Salvo’s. ‘Who’s poorer than us?’, they asked. Fortunately, they both have jobs in top overseas unis now. Maybe that theft let them crawl out of the poverty spiral.)

• Third, there’s the conduct mandate route. But: (a) is the Uni a public authority?; (b) is eviction incompatible with the Charter right against arbitrary interference in the home?; (c) does the RTA provide the uni with Charter s. 38(2) cover? (d) is relief against eviction one of the non-Charter remedies that can squeeze through the thicket of Charter s. 39?

Bah humbug!. But at least the students may emerge (from their studies and their terrace houses) with some very handy expertise on the limits to Victoria’s Charter….

(Charterblog will, unsurprisingly, go quiet for a couple of days. Alas, there’ll be some more surprising quiet not too long after that. See the flurry of posts around New Years’ Eve….)

Charter s. 39 vs tenants

The interaction between residential tenancy law and human rights law is a major issue, both here and in the UK. VCAT has already used the Charter to suggest a narrower reading of a provision of the Residential Tenancies Act that would allow eviction. But, in the UK, recent cases have suggested that the interpretation mandate and the conduct mandate have limitations (to preserve parliamentary sovereignty) that might make the Charter less effective as a relief against eviction for tenants than some people think. In particular, the interpretation mandate can’t be used to read broad limitations into a statutory eviction right and landlords who happen to be public authorities are probably fairly free to ‘give effect’ to their statutory eviction rights by acting more or less like private landlords. See here and here. A three-week old case  that just turned up on Austlii, confirms some of these limits and introduces a new one that’s unique to Victoria’s Charter, involving the first ever application of Charter s. 39 to refuse a remedy. Unfortunately, VCAT’s reasoning is more debatable. 

Director of Housing v IF [2008] VCAT 2413  involves, not eviction, but rather the Residential Tenancies Act’s ‘compliance’ scheme, which consists of four stages: a ‘breach of duty‘ notice, a ‘compliance order‘ if the notice is breached,  a ‘notice to vacate‘ if the compliance order is breached, and, ultimately a ‘possession order‘ (i.e. eviction), if the notice isn’t complied with. Whew! In this case, the Director of Housing was attempting to get to the second stage with its tenant, IF. The problem was IF’s alleged conduct towards his neighbours:

The incidents described at the hearing by LS included once when IF threw a log of wood over the fence and hit LS’ wife on the head. LS said that he bought his son a small swimming pool but had to put it away and not allow him to use it. He described an occasion when IF exposed himself to the child. LS called the police, but when they came IF was in his underwear and so drunk that the police said they couldn’t do anything. LS said that every time his wife leaves for her work IF stalks her, walking behind her and calling her “bitch.” Once IF said to LS’ son “your dad is f…ing dead meat – we are going to get him killed.” There have been many threats of death. LS said that IF calls LS a “f…ing Columbian” and yells out that he is going to have LS killed. After the first hearing of this case, on 7 August 2008, LS had to call the police because IF was yelling out that he was going to have LS killed. LS said that IF yells abuse and threats over the fence, and so they have to stay inside and keep the back door locked.. Sometimes IF’s friend SW sits out the front with IF and also yells out abuse at L. LS said that last night – the night before this hearing – a neighbour died and IF, who had been drinking, was yelling out that “the f…ing Columbian killed her.

Broadly, the problem was IF’s alcoholism. LS’s difficulties had been going on for seven years, and (unsurprisingly) LS’s family was on a waiting list for alternative accommodation. A neighbour backed up LS’s account, but IF and IF’s friend blamed LS for the dispute. IF didn’t help his arguments much by threatening LS during the VCAT hearing.

On 24th June this year, the Director of Housing issued IF with a ‘breach of duty’ notice, specifying four incidents of abusive behaviour in the previous month in breach of a statutory duty to not ‘use the rented premises… in any manner that causes a nuisance.’ (The more-apt second part of that duty, which refers to the ‘reasonable peace, comfort and privacy’ of neighbouring premises, wasn’t cited.) The provision governing breach of duty notices states:

208(1) A person to whom a duty is owed under a duty provision or that person’s agent, may give a breach of duty notice to a person in breach of that duty.

(2) A notice under subsection (1) must- (a) specify the breach; and (b) give details of the loss or damage caused by the breach; and (c) require the person, within the required time after receiving the notice- (i) to remedy the breach if possible; or (ii) to compensate the person to whom the duty is owed; and (d) state that the person in breach must not commit a similar breach again; and (e) state that if the notice is not complied with- (i) an application for compensation or a compliance order may be made to the Tribunal…

If someone leaves something smelly in a common area, it makes sense to tell that person to ‘remedy’ that in the ‘required time’ (14 days in most cases) and to not to it again. But it’s not so clear how notices work when the breach of duty consists of a course of conduct that evinces itself occasionally, as happened with IF. What does it mean to ‘remedy’ such a breach within 14 days? And what actions amount to ‘commit[ing] a similar breach again’? These issues were squarely raised by IF, because his neighbours had a quiet month after the notice was given, but another incident (the first of several, apparently) occurred again on 24th July. Did that mean that IF hadn’t ‘complied‘ with the notice, thus allowing VCAT to issue a compliance order?

VCAT Member Geneveive Nihill considered whether Charter s. 32 required her to consider whether or not an interpretation of s. 208 as obliging IF to refrain from abusive behaviour beyond the 14 day remedy period was a limit on IF’s rights. Apparently adopting Tate’s three-step approach to the interpretation mandate, she held that s. 208(1)(d) ‘engages’ IF’s right to privacy but also engages the right to privacy of IF’s neighbours (by promoting them.) Nihill skipped onto Charter s. 7(2) and asked Tate’s third ‘justification’ question. Unsurprisingly, justification was straightforward, given that the compliance scheme merely piggy-backs onto existing legal duties of tenants, which in turn piggy-back onto rights of their own. As enforcement schemes go, the RT Act’s compliance scheme is amazingly attenuated, with multiple opportunities for VCAT review, so it easily satisfied Charter s. 7(2)(e)’s ‘minimal intrusion’ test and the broader ‘proportionality’ test.

This is all well and good, but Nihill’s analysis suffered by not expressly considering the middle step of whether or not s. 208(1)(d) limited Charter s. 13(a). That would have involved considering whether or not s. 208(1)(d) was ‘arbitrary’ or ‘unlawful’. Equally, she also skipped s. 7(2)’s ’subject under law’ requirement. Both of these tests focus on whether or not s. 208(1)(d) imposes a clear obligation on IF. Arguably, given it’s inaptness to breaches that consist of repeated incidents, it doesn’t. Does s. 208(1)(d) apply forever? Will a single moment of abuse breach it? IF, arguably, had no clear guidance on what would be a breach. Nihill was certainly aware of this problem:

I agree that there may be a different interpretation of the operation of section 208 in the light of different facts, and in particular if a person caused a nuisance in a way that was not manifestly similar to the nuisance described in the notice, or if the repeat of the nuisance took place a very long time after the notice of breach was served. In this case, I find that the breach committed on 24 July 2008 was the same as, or strikingly similar to, the previous breaches. I find that the period of time that has passed is not so long as to make it unfair or unlikely that the tenant would be aware that he was breaching the notice.

That’s all very reasonable, of course, but it treats the task of interpretation as one that can vary depending on the facts before the tribunal. As the UK tenancy cases argued, interpretation doesn’t involve declaring a statute applicable or not to a particular factual scenario, but rather developing a broad principle and seeing if the words can be interpreted to fit it. It may well be that the only way to make s. 208(1)(d) Charter-compliant (in the sense of not capturing the scenarios identified by Nihill and, in particular, providing intelligible guidance to people like IF about what they can and cannot do) is to read it in so narrow a manner that it doesn’t capture IF’s conduct in this case. As it happens, I don’t think such a narrow reading of s. 208(1)(d) was necessary in this case. Moreover, if it was, I think there’s a good argument that it would conflict with the purpose of the provision and, arguably, the Charter rights of IF’s neighbours.

The interpretation mandate is too broad a remedy to fix a provision like s. 208(1)(d) which straddles too many scenarios, sometimes limiting a tenant’s rights, other times providing crucial support for the rights of landlords and neighbours. Instead, a more appropriate remedy is the conduct mandate. The conduct mandate, in public housing cases at least, allows s. 208(1)(d) to be given a broad reading, but potentially ameliorates some of its negative effects by barring public landlords from applying it in individual cases where it would work unreasonably. The good news is that just such an argument was made by IF:

The tenant has made extensive and interesting submissions about the landlord’s obligations under the Charter. Essentially the tenant has submitted that the landlord is a “public authority” under section 4 of the Charter, and is therefore required by section 38 to act compatibly with the Charter. It must do so, submitted the tenant, when exercising its powers under the Housing Act 1983 with respect to the acquisition, disposal, development and management of land. In managing this tenancy, including making the decisions to serve a notice of breach and to apply for a compliance order, the landlord exercised these powers. According to the tenant, it did not do so in a way that was compatible with the Charter. I agree that the Director of Housing is a public authority as defined in section 4 of the Charter. This is clearly the case; the Director of Housing is a public official, and the Office of Housing (a unit of the Department of Human Services) is an entity established by a statutory provision that has functions of a public nature

The finding that the Director and the Office are public authorities is, of course, correct. 

Alas, Nihill held that, even if this argument was correct, she couldn’t do anything about it!:

After careful reflection, I do not consider that I have the jurisdiction to go behind the application made by the landlord, and review whether or not the landlord acted in a Charter compatible way in reaching the decision to make the application. In relation to this proceeding, in this jurisdiction, I can only make decisions about the provisions of the Residential Tenancies Act 1997 and the Victorian Civil and Administrative Tribunal Act 1998. The Residential Tenancies Act 1997 is very detailed. It provides jurisdiction for a wide range of decisions about residential tenancies, boarding house residencies, and caravan park residencies. It makes no distinction between private and public tenancies. It does not provide for the review of decisions made under the Housing Act 1983 by the Director of Housing.  Any challenge to the decisions of the Director of Housing made under the Housing Act would need, I think, to be brought in a different jurisdiction. The conduct of government bodies in the exercise of their decision making power is reviewable under the Administrative Law Act 1978.

If this is true, then it’s quite a problem, as it’ll mean that any public housing case will have to proceed in two courts: VCAT and the Supreme Court (and the latter is scarcely geared towards the quick informal hearings that are generally considered necessary to resolve residential tenancies disputes.) Nihill made it clear by a reference to the dreaded Sabet that her finding is a purported application of the dreaded Charter s. 39(1):

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

So, this appears to be the first time the Charter’s remedies section has been used to deny someone a remedy.  Charter s. 39(1), you might recall, is meant to reduce the amount of litigation under the Charter; it’d be doubtful that this purpose would be achieved by forcing most public housing disputes into the Supreme Court. So, fortunately, it’s probably a doubtful ruling.

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:

Taxi driver redux

Sophie Delaney and Vivienne Topp write in today’s Sunday Age on XFJ (the first mention of the case that I’m aware of in the broadsheet):

Not only is this a disturbing example of tabloid-driven law-making, and an undermining of the rule of law, it is also potentially discriminatory. People found not guilty due to mental illness offend because of their illness. An indiscriminate exclusion of such people from employment or participation in society is particularly questionable in the year when Victoria’s Charter of Human Rights and Responsibilities has become fully operational.

It is starting to look like the Charter will inevitably be drawn into this case, despite its near miss in the VCAT judgment.

There are currently three Charter angles:

First, there’s news of an action to overturn the suppression order on XFJ’s name by VCAT:

Ms Kosky’s comments came as the Herald Sun launched legal action to unmask the man, who stabbed his wife to death in a frenzy and whose identity is suppressed by a tribunal order.

It was pointed out to me that, if the Herald Sun was able to use the Charter to reveal XFJ’s identity, then my feared head-on crash may be more of a love-in. Indeed. But it isn’t an especially likely outcome. As the Herald Sun’s owner happens to be a corporation (Herald and Weekly Times), it has no rights. This seems to be the basis on which Channel Nine’s action to get Underbelly unsuppressed came a cropper. It shouldn’t have, of course, as the VCAT suppression order (like King J’s) affects the rights of Melbournians to ‘receive information’, part of their Charter freedom of expression. As well, at a stretch, the Hun can argue that those Melbournians’ right to movement might be harmed by not knowing XFJ’s identity (as some may be deterred from taking taxis.) Even more extreme, they could claim that their rights to security or life are at stake. But that’s a two-edged sword: XFJ’s rights against discrimination, privacy, security and (at a stretch) life (and maybe his family life) are protected by the order. 

Second, there’s Kosky’s promise to appeal against the VCAT judgment:

We will look at every avenue for appeal so I can actually fix that difficulty, so everyone can feel safe when they hop in a cab. That’s what I want to be able to guarantee,” she said.

Presumably, the government will argue that Macnamara misinterpreted the word ‘comfort’ in the Transport Act’s ‘public care objective’ as about upholstery rather than the personal foibles of Melbournian taxi drivers. It’s inevitable that XFJ will resist this argument using the Charter. Macnamara didn’t have to resolve that issue, but the Supreme Court will have to. Perhaps the government will respond with Charter arguments about Melbournians’ rights. But, more likely, the government will just fight XFJ’s Charter claims tooth-and-nail. Charter s. 35 notices will have to be issued, meaning that the Attorney-General and VEOHRC will be invited to the party. Both of course will be there to provide neutral assistance, so maybe the Attorney-General will back XFJ? Anyone want to bet on that one?

Third, there’s the coming legislation.

The sex offenders’ challenge

My guess last post was right. (Of course, presumably the whole legal community knew this, but not me.) It’s on!:

Two convicted sex offenders are invoking Victoria’s human rights charter to appeal against being given an extended supervision order in what is a legal first.

One of the applicants is a child sex offender jailed for more than 10 years for his crimes. The man, whose name is suppressed, was convicted for sex crimes against his teenage daughter, another teenage girl and his adult partner. He was given a 10-year extended supervision order when he finished his jail term after a County Court judge found a “high degree of probability” he was likely to further offend. However, his lawyer Graham Thomas SC told a Court of Appeal hearing today his client was not a high-risk child sex offender and therefore not eligible to to be subject to the order.

Mr Thomas also said the sentencing judge had indicated she did not believe the man was suitable for an order but later changed her position. But counsel representing the secretary to the Department of Justice, David Grace QC, said the man’s crimes were premeditated and opportunistic. Mr Grace said the sentencing judge included in her reasons the fact the man had shown a lack of insight into his behaviour by denying his wrongdoing. He said the man jumped bail on the day he was due to attend his court hearing on his application for an extended supervision order and had refused to take part in a sex offenders program, despite being offered many times. Mr Grace said the man continued to “thumb his nose up at authority” and suggested he tried to create relationships with females with children while he was in jail so he could groom them for sexual offending.

The second sex offender is appealing an eight-year extended supervision order imposed on him by the County Court on the basis it is too long. The man, whose name is also suppressed, was jailed for more than a year for indecent assault and will also use the charter to argue his case.

Victoria became the first Australian state to implement a Charter of Human Rights and Responsibilities on January 1 and it is the first time it will be considered by Victoria’s appeal court. The hearing before Justices Geoffrey Nettle, President Chris Maxwell and Mark Weinberg continues tomorrow.

Um, it’s actually the sixth time the Charter will be ‘considered’ by Victoria’s appeal court. The appeal court cited the Charter once in 2006 and four times again this year, including in its appalling Underbelly decision. Here’s hoping, though, that this will be the first time the Court actually does the Charter justice, in analysis if not in the final result. Interestingly, all three judges in this hearing are Charter virgins. The case, argued today, is listed for a second day of argument tomorrow. [EDIT: And here's the Hun's take. The tabloid refers to the offenders as 'sex fiends' (fair enough, I guess) and, as is the norm, gives more details of the legal argument than the Age.]

But what is being argued? The article is tantalisingly vague. I can see three types of rights arguments could be made about extended supervision orders (ESOs):

The right to information

I’ve complained before about the shoddy standards of Victorian courts when it comes to giving the public useful access to their judgments. Whereas all other mainland jurisdictions in Australia place all higher and intermediate court judgments (and quite a few lower courts ones) on their own websites or Austlii, only the Supreme Court of Victoria and VCAT (plus a couple of minor entities) give their decisions to Austlii. A new NSW practice note seeks to formalise the removal of judgments from Austlii when their contents might prejudice a trial. Assuming you buy into the whole ’suppression order’ dogma (regardless of effectiveness or proprotionality), that makes sense in theory. In practice, it just means that various judgments vanish in arbitrary ways, often indefintely. For example, despite Joseph Thomas’s trial ending some weeks back, nearly all the various judgments in his case (from Cummins J’s appalling admissibility ruling in 2005 to Curtain J’s appalling sentencing judgment more recently) are still not available on Austlii.

I raise this because of a particular mystery about VCAT decisions. I recently covered the interesting Charter/Disability Act decision, LM [2008] VCAT 2084. The day of my post, the judgment vanished from Austlii and is yet to re-appear. Who knows why? Maybe there’s a concern about LM’s privacy, but it is surely important for Charter applications to be on the record. As someone who’s spent years trying to prise case files out of courts, I’m well versed (in that narrow field) with bureaucrats’ tendency to keep information to themselves whenever they can (and to use that control over information to deflect attempts to establish any right to get it.) The dawn of FOI legislation (albeit never applicable to courts) has changed the courts’ rhetoric from ‘mine!’ to ‘we are protecting litigants’ privacy!’, but their conduct is identical. Will the dawn of the Charter make any difference?

In a three-week old VCAT decision that mysteriously materialised on Austlii this week, McDermott v Victoria Police (General) [2008] VCAT 2183 – read it quick before it vanishes! – the applicant, trying to prise documents out of Victoria Police’s Ethical Standards Branch and the Office of Police Integrity about a rejected complaint he made to them, tried out a vague Charter argument to convince VCAT to override some FOI exemptions:

In his reply to counsel for the respondent, counsel for the applicant also submitted that the public interest override should be invoked because the process of sampling was unfair, the Charter of Human Rights had not been observed, the process was one-sided and his client was hampered in his case by being placed at a severe forensic disadvantage by his inability to have all the file available for the benefit of cross-examination of the police witnesses.

VCAT Senior Member Noreen Megay didn’t resolve what the Charter argument was all about:

In counsel’s reply he referred in passing to the obligations imposed by the Charter of Human Rights but this was not a matter articulated during the running of the hearing. Certainly it was referred to, again in passing, in a preliminary argument about the subpoena issued by the Tribunal at the request of the applicant and was dealt with in the preliminary ruling.

Meh. Another inarticulate attempt to raise the Charter, without (it seems) any attempt to identify either operative provisions or rights that are engaged. (Charter s. 49(2) shouldn’t be a problem. The incident complained of and the complaint itself occured in 2006, but the complaint, and the ensuing FOI application, were lodged in 2007. Charter s. 49(3), though, might bite to the extent that McDermott was relying on the conduct mandate as it applies to Victoria Police, who failed to make a timely decision in November 2007 and ulitimately reached its conclusion in December 2007.)

So, what operational provisions were at issue? Probably both the interpretation and conduct mandates. The relevant provision of the FOI Act is this one:

50(4) On the hearing of an application for review the Tribunal shall have, in addition to any other power, the same powers as an agency or a Minister in respect of a request, including power to decide that access should be granted to an exempt document (not being a document referred to in section 28, section 29A, section 31(3), or in section 33) where the Tribunal is of opinion that the public interest requires that access to the document should be granted under this Act.

This section’s foundation is the fact that, often, government agencies have a choice on whether or not to release information. Public authorities must now make that choice in accordance with the Charter’s 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.

If not granting access would limit someone’s Charter rights, then access must be granted (subject to the Charter s. 38(2) defence, which presumably would apply in the case of some exempt documents.) Section 50(4) of the FOI Act has been interpreted as only permitting VCAT to make such a decision on an agency’s behalf if the public interest ‘necessitates’ it. But, if the conduct mandate requires entities to grant access, then perhaps s50(4)’s concept of ‘public interest’ should be interpeted as encompassing that very circumtance? (This would be subject to such an intepretation being consistent with s50(4)’s purpose. I’m no FOI wonk, so I have no idea.) On one reading of s50(4), VCAT is standing in place of the original decision-maker ‘the same powers as an agency’ (which include duties, like Charter s. 38(1)), so arguably VCAT is bound to order release under s50(4) if the agency should have released.

But all of that is by-the-by unless there is a right being limited.

Unfinished abortion law reform

Weeks after the Abortion Law Reform Bill became an Act, a Ministerial response to a SARC query was published. It confirms that the Bill did not decriminalise all abortions performed by doctors in Victoria. Rather, the Minister says that the following scenario posed by SARC is ‘in theory possible’:

[I]f a doctor performed an abortion on a woman who was more than 24 weeks pregnant after unreasonably forming a belief that the abortion was appropriate in all the circumstances… such a doctor might be liable to prosecution under one of the “causing serious injury” offences in the Crimes Act, as a result of the extended meaning of “serious injury” introduced into that Act by the Bill.

The Minister claims that there is ‘little likelihood’ of this scenario actually occuring, because of the unlikelihood that two doctors will agree on something that is inconsistent with generally accepted medical practice. I’ll leave that issue to the health professionals, but the theoretical possibility raises a rights issue, because causing medical decision-making to be done in the shadow of a criminal charge for an offence attracting a twenty-year maximum sentence is arguably incompatible with the Charter’s right against unlawful or arbitrary inteferences in privacy. Alas, this significant rights issue for the pro-choice side of the debate was sidelined by the Charter’s savings provision:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

Towards the end of the Abortion Law Reform Bill’s parliamentary debate, the pro-choice side responded to repeated references to the Charter by the pro-life side (in relation to the mandatory referral clause) by arguing that Charter s. 48 was, allegedly, sought by the Catholic Church. That’s a claim Rob Hulls made on the ABC, but I for one wonder if he was thinking of Charter s. 38(4), the exemption from the conduct mandate for religious bodies. At last week’s seminar, Pamela Tate revealed that the abortion issue ‘divided’ the consultation committee and that the view that abortion controversies should be resolved outside of the Charter stemmed from that. But, actually, the Committee favoured the narrower ACT approach, of only excluding the right to life, and its Report makes no mention of the rationale for the broader savings clause in the Bill itself. Tate insisted that Charter s. 48 was drafted to ensure that nothing at all in the Charter had any application to abortion. Strange that Charter s. 48 doesn’t quite say that (in comparison to, say, Charter s. 31.)

Anyway, the debate over the referral clause really demonstrates the stupidity of Charter s. 48, regardless of whose bright idea that clause was. Hulls’s main defence of the referral clause was that it did not require pro-life doctors to refer a patient to an individual pro-life doctor, but rather only required an ‘effective referral’, which presumably could be achieved by telling the patient to contact any public hospital. The problem with that defence is that it doesn’t fit the words of the clause:

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

If it wasn’t for Charter s. 48, the interpretation mandate would almost certainly achieve exactly the result that Hulls described. But, alas, s8 will be one of the few provisions of Victorian law that won’t get the benefit of the Charter’s regime for interpretation.

Or maybe not so few. The other response to SARC by Minister Maxine Morand contains some chilling news indeed:

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.

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 right to a parliamentary debate

The abortion debate yields another first: the first (to my knowledge) published legal advice on the Charter as part of a political debate. Such advices are a regular part of the landscape in other jurisdictions with human rights laws, so it’s surely a positive development. The advice is from Phillips Fox to Catholic Health Australia Inc and is written (or signed) by partners Nigel Preston and Rachel Walsh. So, did CHA get their money’s worth?

The major claim of the advice is that there should have been a statement of compatibility with respect to clause 8. The problem is Charter s. 48:

48 Nothing in this Charter affects any law applicable to abortion or child destruction, whether before or after the commencement of Part 2.

Preston and Walsh’s argument is:

Section 48 is a savings provision, intended to protect laws concerning abortion from being interfered with by or challenged under the Charter, whenever they came into effect. In particular, section 48 was intended to protect the common law on abortion from challenge under section 9 of the Charter…  Indeed, an early exposure draft of the Charter contained a caveat to the Right to Life provision that it applied only after birth.

Insofar as the Bill is concerned with legalising or decriminalising aspects of abortion, it is correct to say that those provisions are not subject to the legislative processes established by the Charter. However, the problem is that this Bill affects rights other than those concerned with the decriminalisation of abortion. Clause 8 of the Bill contains provisions that go beyond the remit of section 48 of the Charter, and so should be subject to the Charter’s process for scrutinising the Bill for compatibility with human rights and to other Charter provisions (including the interpretive obligation in section 32).

Whereas SARC, in its report, focussed on the words ‘law’, ‘applicable’ and ‘affects’, this argument centres on Charter s. 48’s alleged purpose, tying it exclusively to the ‘legalising or decrininalising aspects’ of abortion and child destruction. I’m not so sure that the criminal law angle on abortion can be so readily separated from the medical law angle – or that the purpose of Charter s. 48 can be precisely discerned – but there’s no doubt that the scope of Charter s. 48 is quite a quandary.

So, what are the consequences if parts of the bill are outside Charter s. 48’s scope? That depends on these two sections:

28(1) A member of Parliament who proposes to introduce a Bill into a House of Parliament must cause a statement of compatibility to be prepared in respect of that Bill.

(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.

(3) A statement of compatibility must state- (a) whether, in the member’s opinion, the Bill is compatible with human rights and, if so, how it is compatible; and (b) if, in the member’s opinion, any part of the Bill is incompatible with human rights, the nature and extent of the incompatibility.

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.

Preston and Walsh say:

You may be confronted by an argument that the failure to comply with the Charter has no consequences. The basis of the argument is that the Charter requires a process of consideration of compatibility with human rights to be followed at the time of second reading of a Bill, but the Act which flows from the Bill is not invalidated if that process is not followed…. To our thinking, section 29 of the Charter is not the point in this case. The Bill is not yet an Act. This section is designed to remedy a mistake in the processes leading to an Act. This section is not a mechanism to avoid consideration of the Charter in relation to any Bill where the Charter should be considered.

That’s certainly true. But it does mean that this legal advice is actually about the legality of non-justiciable parliamentary process. Anyway, Preston and Walsh go on:

The central point is that the human rights protected by the Charter should have been considered at the time when this Bill was introduced into Parliament. The clear objective of the Charter is to facilitate a consideration of those human rights which are protected by the Charter in the debate on this Bill. The wrongful exclusion of the Charter from debate in relation to this Bill has cut short a proper consideration of the human rights which may be affected by the Bill. According to the second reading speech, the Charter was intended to promote a ‘dialogue model of human rights’, which ’seeks to address human rights issues though a formal dialogue’ between branches of government. The exclusion of the Charter from debate contradicts this intended goal. It is not for us to say what might have happened if the Charter had been considered in Parliamentary debate. It is not for us to conjecture whether the Bill would have been amended, or not. This is a matter for Parliament, but more particularly, it is a matter for a properly informed Parliament.

Speaking of the ‘exclusion’ of the Charter from parliamentary debate is a little extreme. No-one’s stopping the Charter being mentioned there or elsewhere. All that’s missing is the statement of compatibility. (And, ahem, the Parliament was ‘informed’ (properly or otherwise) by SARC’s report. SARC suggested a similar conclusion on the possible requirement of a statement of compatibility, but by a different argument: that Charter s. 48 didn’t have any impact at all on Charter s. 28, because it only affects laws, not bills.)

The advice then goes on to suggest four rights that clause 8 limits:

The Charter vs black holes

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

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

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

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

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

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

SARC on abortion

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

The Committee observes that:

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

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

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

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

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

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

SARC on prisoners’ civil claims

The Victorian Parliament is currently considering a bill to quarantine (for twleve months) the money prisoners receive from the state pursuant to claims for civil wrongs. The Second Reading Speech explained the purpose of the Bill as follows:

The government intends to address the situation where an offender receives an award of damages from the state and therefore has a much improved financial situation. Victims can then choose to take advantage of that improved financial situation by taking their own legal action in the knowledge that there are assets that may satisfy a successful judgement. The government is aware of the perceived inequity when offenders are seen to use the law for their own purposes through pursuing compensation arising from their circumstances in custody. This bill represents a step in addressing that inequity.

The Bill has its origins in a political debate in New Zealand about claims being made under its Bill of Rights Act (which, in contrast to the Charter, creates both a  cause of action for breach of human rights and a remedy of damages.) Challenges to the NZ Act have to date failed on procedural grounds.

The Human Rights Law Resources Centre made a lengthy submission to SARC on the Bill:

The Centre has grave concerns about the impact that the Bill would have on the following human rights. The rights listed below are protected under the Charter at the sections indicated.

(a) The right to recognition and equality before the law (section 8).

(b) The right to privacy and reputation (section 13).

(c) The right to protection of families and children (section 17).

(d) Property rights (section 20).

(e) The right to humane treatment when deprived of liberty (section 22).

(f) The right to fair hearing, including the right to equal access to courts (section 24).

(g) The right to an effective remedy (which is fundamental to the protection of all human rights).

…The Centre considers the premise of the Bill to be incompatible with the human rights outlined above… , which are rights that the Victorian government commendably seeks to protect and promote in the Charter. As such, the Centre recommends that the Bill be withdrawn in its entirety.

SARC’s own report on the Bill was tabled in Parliament today. It focuses on a section that requires the fact that a named prisoner has been successful in a claim to be advertised in Victorian and national newspapers:

The Committee observes that the information contained in the notice – that the prisoner has been a victim of a civil wrong committed by the state and is the recipient of an award of more than $10,000 – is potentially sensitive information, particularly given the vulnerabilities of many prisoners. The Committee also observes that this requirement is a mandatory one regardless of the circumstances and, in particular, overrides any confidentiality clause contained in an agreement between the state and the prisoner (see new section 104ZB.) The Committee therefore considers that new section 104Y may engage prisoners’ Charter right against arbitrary interferences in their privacy.

The Committee was also concerned that the requirement may override contrary court orders and laws.

SARC’s report also raises Charter concerns about the exemption of some offenders from the new County Court Koori division and the reverse onus defence of due diligence in an offence relating to factory openings on ANZAC Day.

The Charter vs tenants

I’ve previously blogged about a secondary account of PILCH’s use of the Charter to (successfully) prevent the eviction of tenants by Victorian public authorities (or, at least, arguable public authorities.) The PILCH Homeless Person Legal Clinic relied primarily on this right:

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

While not doubting the HPLC’s good motivations, I was dubious about its legal arguments and a new House of Lords case underlines those doubts, as well as giving some long-overdue attention to a crucial operational provision of non-entrenched human rights statutes.

The recent UK House of Lords judgment, Doherty  v Birmingham City Council [2008] UKHL 57, is the UK top court’s third go at trying to sort out the tricky relationship between tenancy law and human rights law.  The issue, in Victoria and the UK, is eviction without cause, permitted in Victoria by s. 263(1) of the Residential Tenancies Act 1997 (albeit only with 120 days notice.) In the UK, many public tenants are protected from eviction without cause , but that protection does not extend to caravan sites, where a lesser protection regime only covers privately owned cites. This situation is hard on gypsies, who are often long-term residents of publicly owned sites and, indeed, were singled out for exclusion from a second protective scheme for mobile home tenants.Responding to a 2004 ECtHR case that criticised the exemption of gypsies, the UK Parliament has since repealed both limitations on protections for tenants of caravan stites, but that came too late for the litigants in Doherty, who face eviction by a local authority that regarded the long-term presence of a gypsy family as an impediment to its planned redevelopment of its caravan site.

As I’ve previously blogged, Bob Carr has been bandying about hearsay claims that UK landlords are now too scared to evict gypsy ‘trespassers’, a tale that not only panders to racists but ignores the limitation of the UK’s legal debate to publicly owned land and to lawful (indeed long-term) tenants. Even within these limitations, UK law still protects landlords, not tenants. Initially, the House of Lords rejected the idea that eviction raised any human rights issues at all; public authorities, they held, like private landlords, were allowed to evict tenants at the end of their lease. Rebuffed by the ECtHR in the case of the gypsies, the House of Lords set out two avenues for tenants to complain to courts: by seeking common law judicial review of the decision of public authorities; and by attacking the eviction statute using either the interpretation mandate or a declaration of incompatibility (the latter course at least giving the tenants a temporary respite from eviction.)

I’m not sure whether public housing authorities in Victoria are amenable to ordinary adminstrative law, but the HPLC certainly tried to rely on the interpretation mandate to protect tenants from eviction into homelessness:

[F]ollowing the entry into force of the Charter, landlords are now obliged to interpret their rights under the RTA in a way which is compatible with the Charter (s 32(1)). In this case, the landlord had not provided any reasons for the eviction nor provided the tenant with an opportunity to address its concerns. Relying on Ghaidan v Godin-Mendoza, the HPLC submitted that VCAT read in to s 263 the italicised words: ‘A landlord may give a tenant a notice to vacate rented premises without specifying a reason for the giving of the notice, if reasonable to do so in the circumstances and if to do so is compatible with the Charter.’

I’ve previously argued that Ghaidan may be a poor authority for Victoria’s Charter, even putting aside the express limitation on Charter s. 32 to interpretations consistent with the purpose of a statutory provision. Doherty suggests that even a UK-style mandate would not achieve the result asserted by PILCH:

Section 3(1) HRA provides that, so far as it is possible to do so, primary and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights. But the exclusions from protection that are to be found in these statutes are not susceptible to interpretation in a way that would remove the incompatibility. Giving effect to them is unavoidable… As has often been said, section 3(1) provides the court with a powerful tool to enable it to interpret legislation and give effect to it. But it does not enable the court to change the substance of a provision from one where it says one thing into one that says the opposite.

While Lord Hope was willing to issue a declaration of incompatibility about the UK statutes, the remaining lords declined, citing both the repeal of the laws and doubts about whether or not blame could be sheeted to those particular statutes, rather than the wider legal system of English law when it comes to tenancy.

That leaves the conduct mandate

The ALRC vs the Charter

Today brings the release of a truly mammoth three volume report from the Australian Law Reform Commission on privacy protection in Australia. While much of the report is directed to the intricacies of existing privacy legislation and related statutes, the highlight is a dramatic proposal for a new statutory cause of action:

Recommendation 74–1 Federal legislation should provide for a statutory cause of action for a serious invasion of privacy. The Act should contain a non-exhaustive list of the types of invasion that fall within the cause of action. For example, a serious invasion of privacy may occur where: (a) there has been an interference with an individual’s home or family life; (b) an individual has been subjected to unauthorised surveillance; (c) an individual’s correspondence or private written, oral or electronic communication has been interfered with, misused or disclosed; or (d) sensitive facts relating to an individual’s private life have been disclosed.

Recommendation 74–2 Federal legislation should provide that, for the purpose of establishing liability under the statutory cause of action for invasion of privacy, a claimant must show that in the circumstances: (a) there is a reasonable expectation of privacy; and (b) the act or conduct complained of is highly offensive to a reasonable person of ordinary sensibilities. In determining whether an individual’s privacy has been invaded for the purpose of establishing the cause of action, the court must take into account whether the public interest in maintaining the claimant’s privacy outweighs other matters of public interest (including the interest of the public to be informed about matters of public concern and the public interest in allowing freedom of expression).

Recommendation 74–3 Federal legislation should provide that an action for a serious invasion of privacy: (a) may only be brought by natural persons; (b) is actionable without proof of damage; and (c) is restricted to intentional or reckless acts on the part of the respondent.

Recommendation 74–4 The range of defences to the statutory cause of action for a serious invasion of privacy provided for in federal legislation should be listed exhaustively. The defences should include that the: (a) act or conduct was incidental to the exercise of a lawful right of defence of person or property; (b) act or conduct was required or authorised by or under law; or (c) publication of the information was, under the law of defamation, privileged.

Recommendation 74–5 To address a serious invasion of privacy, the court should be empowered to choose the remedy that is most appropriate in the circumstances, free from the jurisdictional constraints that may apply to that remedy in the general law. For example, the court should be empowered to grant any one or more of the following: (a) damages, including aggravated damages, but not exemplary damages; (b) an account of profits; (c) an injunction; (d) an order requiring the respondent to apologise to the claimant; (e) a correction order; (f) an order for the delivery up and destruction of material; and (g) a declaration.

This is an exciting proposal, although whether it has a chance of being adopted I have no idea.

What is quite disappointing, though, is that the ALRC’s lengthy report virtually ignores the Charter and (especially) the ACT’s Human Rights Act. The report duly notes that Victoria has a Charter, including both an interpretation mandate and a conduct mandate, but contains no analysis of the possible use of the conduct mandate as a remedy against invasions of privacy (Charter s. 39(1) would probably greatly limit the remedies available for a breach of privacy by a public authority.) More disturbingly, its brief discussion of the ACT Human Rights Act addresses only its interpretation mandate, ignoring the new conduct mandate that will commence next year, which notably empowers ACT courts to provide appropriate remedies (other than damages) for breaches of the conduct mandate, including breaches of privacy. No reference is made to the human rights consultations in Tas or WA, or the proposed federal consultation. (Indeed, the Report’s summary of existing Federal law doesn’t even mention the Human Rights (Sexual Privacy) Act 1994! Extraordinary.)

While the protections offered by the Charter and ACTHRA are limited in many ways (notably not providing protection from invasions by private individuals or entities), it seems to me that they ought not to be ignored or give only passing mentions in a report that is seeking to make significant changes to how Australians’ right to privacy is protected.

The Charter vs DNA labs

Today brings this shocking, disappointing but unsurprising news:

Police have dropped murder charges against a man over the 1984 killing of a mother and her young daughter after DNA evidence on clothing related to the case was found to be contaminated. Homicide Squad detectives last month charged 43-year-old Victorian prisoner Russell Gesah over the deaths of Margaret Tapp, 35, and her nine-year-old daughter Seana. Their bodies were discovered in their Ferntree Gully home on August 8, 1984. Victoria Police said today that forensic officers had identified a possible contamination of the biological evidence after a laboratory review. The contamination occured in 1999 when clothing containing the DNA of Gesah – from an unrelated offence – was examined on the same day that clothing from the Tapp murder case was examined. Deputy Commissioner Simon Overland today defended the force’s DNA testing procedures, describing them as the “world’s best practice”

The reason this is unsurprising is that it happened before. In 2003, the coronial inquest into the notorious depth of Moe toddler, Jaiydn Leskie, was distracted by a DNA database match between Leskie’s clothes and a rape victim living in Western Melboure. After that victim (and her relatives) were investigated, the police realised that a condom from the rape was tested at the Victorian lab two days before Leskie’s clothes. While anyone can see (and, indeed, just about every expert who looked at the case did see) that this was a case of in-lab contamination, the lab itself maintained that contamination was impossible; instead, they maintained that this must have been a coincidental match (an opinion they rarely proffer in routine cases.) The coroner despite concluding that there was in-lab contamination, said that the DNA system remains untarnished.

[EDIT: Indeed, I forgot that I gave an interview on Stateline in 2006 on contamination that reads quite nicely now. Watch Stateline tomorrow (Victorians) to see my spiffy corner office and me feigning an interest in a doorstopper called 'Forensic DNA Typing'. Eagle-eyed viewers will see that what I actually was doing was finishing my post on Hearne v Street.]

The issue here isn’t lab practice. While it’s obvious that labs must do everything they can to avoid contamination, what’s more important is that labs and police recognise that contamination is always a possibility, one that should be treated as highly likely if crime sample and suspect sample were in the lab within days of eachother. It’s clear that in the Gesah/Tapp case, the DNA database match was released to the police without any check of the paperwork to test the possibility of contamination. Moreover, the police both charged Gesah and held a proud press conference naming him and lauding the ‘national’ database (even though the matched profiles were both Victorian), before any check was done. One has to wonder, indeed, if the only reason the check was done was because post-charge investigations went awry? Did Gesah have an alibi, which he was somehow able to establish after 25 years? If he hadn’t had an alibi, would this error have every been detected? Or would Gesah have decided to plead guilty in the face of apparent proof that semen on Seana Tapp’s clothing his? Beyond the possibility that an innocent man might have been branded a double-murderer-child-rapist, there’s also the chance that the lab’s blunder in 1999 now means that the real killer can breathe easier.

The behaviour of the lab and the police raises some interesting Charter questions too. Both of them are public authorities, bound by the conduct mandate to not act in ways that are incompatible with the following human rights of Gesah:

Human rights avalanche!

Too many human rights cases, too little time (and, yes, I’m never happy.) Here are some short points on the rush of human rights cases (or related cases or events) that have come out the past few days. I hope to get back to some of them:

• Sham marriages: In Baiai & Ors, R (On The Application of) v Secretary of State For The Home Department [2008] UKHL 53, the House of Lords examined the compatibility of a statutory scheme that required people under immigration control who wanted to marry to get permission from Home Secretary with the ECHR right to marry. The Lords accepted that the scheme served an important function of preventing sham marriages (designed to advance a prospective immigrant’s domestic rights) – thus overturning a declaration of incompatibility that had been issued – but rejected the regulations applying the scheme, which rejected all applications from people who were in the UK without leave or on only short stays. While marriage is not (presently) part of Victorian law and the Charter has no right to marry, this decision may have some relevance to decisions by the Registrar of Births, Deaths and Marriages on whether or not to register relationships, in light of the Charter’s right of families to ‘protection’ by the State.

• Discrimination against Mormons: In Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56, the House of Lords rejected a complaint by the Mormons against a law that provided a rate reduction only for public places of worship, which excluded Mormon temples (which only Mormons can enter.) The majority applied the difficult rule of international human rights law that largely limits equality rights to the enjoyment of other protected rights (which arguably also applies to Charter s. 8) to hold that there’s no right against discrimination when it comes to differential building rates. (They followed an equally dubious decision that rejected a challenge to a law that provided relief from child support obligations to people who re-partner, but only with someone from the opposite sex.) Lord Scott of Forscote felt uneasy about this denial of rights, but held that any discrimination against non-public places of worship was justified because ’secretive’ religions are divisive. Christ!

• Rights of tenants: In Doherty & Ors v Birmingham City Council [2008] UKHL 57, the House of Lords gave its third judgment on the difficult question of the obligations of public authorities to tenants. Faced with ECtHR decisions holding that some evictions processes were incompatible with tenants’ right to respect for their home, the Lords refused to further widen the common law remedies against public authorities, holding that to do so would undermine the decision of the UK parliament to allow public authorities broad eviction rights in some instances. The decision (again) gives lie to Bob Carr’s claims about the problems the UKHRA supposedly holds for property owners trying to evict trespassers. It also re-affirms my doubts about the conduct of some Victorian lawyers in using the Charter to protect tenants from evictions by Victorian public authorities. Most importantly to me, this decision is highly notable for its detailed analysis of the UKHRA equivalent to Charter s. 38(2), a provision I think deserves a lot more attention.

• Admissibility of private diaries: In Lifely v Lifely [2008] EWCA Civ 90, the Court of Appeal dealt with a miserable battle between two brothers over their late dad’s milk business. One brother had earlier convinced a court that some of the milk proceeds were intended to be shared between both sons; however, the other brother had since discovered the first brother’s diaries, which seemed to contradict testimony that had been given about what had been agreed. The Court of Appeal rejected an argument that the right to respect for private life meant that the diaries shouldn’t be admitted; rather, not only should they be admitted as fresh evidence to contradict the earlier finding about the agreement, but the whole case should be revisited in light of the doubts the fresh evidence suggested about the first brother’s credibility. Interestingly, the case sounds a note of caution that the law on the protection of privacy may still have some way to develop and that inadmissibility may be the right remedy in an appropriate fact situation. Could be interesting in terms of the application of s138 of Victoria’s new Evidence Bill in civil cases.

• Politicised criminal investigations: Two fascinating and incredibly high profile decisions on the discretionary powers of criminal investigators. The Constitutional Court of South Africa, in two decisions, upheld most aspects of an investigation by the country’s independent national investigators (the Scorpions) into the business affairs of the country’s next president, Jacob Zuma. Zuma raised a number of his rights under the SABoR, notably arguing that his right to dignity (the core right of SA rights jurisprudence) was being infringed by the stop-start investigation. The Court’s decision was largely statutory, albeit with repeated reference to human rights, and largely upheld the need for workable investigative powers to scrutinise corruption (especially in light of Zuma’s apparent unwillingness to cooperate in the investigation.) In In Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office [2008] UKHL 60, the House of Lords considered a decision of the Serious Fraud Office to drop an investigation of Saudi businesses after the Saudis threatened to stop cooperating in the war on terror. The Lords unanimously held that the decision was within the very broad ambit of prosecutorial discretion. This wasn’t an HRA case, but would seem to have relevance to the question of whether or not prosecutorial decision-making falls within the Charter s 38(2) defence to the conduct mandate.

• Parole boards: A brief mention of the Charter’s exemption of parole boards from the definition of public authorities in a Victorian case involving a challenge to the revocation of parole following an adverse drug test.

• Jack Thomas: It seems, he drew the short straw of Gleeson CJ and Hayne J as his special leave panel in his attempt to re-examine the Victorian Court of Appeal’s unfortunate decision to allow the Cth DPP a second bite of the cherry. Should be an interesting trial…

• Equal Opportunity Review: The release of a review of equal opportunity processes in Victoria, with an emphasis on consistency with the Charter. Some highlights: changing VEOHRC’s name to Human Rights Victoria and introducing a ‘duty to eliminate discrimination’, a conduct-mandate-like legal rule, but without some of the Charter s. 39 limitations.

I could say more about all of these, especially that tenancy case. Whether I have the time is another matter…

The Charter vs DNA sampling

I spoke too soon last post (as I often do.) The Charter has gotten a mention in a County Court judgment that is public available. I’ve known for a while that the County Court does publish selected judgments online, but they nearly all seem to be cases concerning the Accident Compensation Act. Fascinating for all those who want to know the percentage impairment for the loss of a middle figure or whatever. However, a search on the word ‘Charter’ that I typed in just now popped out a criminal case  brought down in June: R v Long [2008] VCC 595, curiously filed under ‘L’. Not that the judgment proves illuminating of anything except Victorian judges’ continuing inability to read the statutes they’re asked to apply.

This matter was a follow-up to a 2007 crimnial trial. Michael Long faced nine charges relating to an incident with Jeanette Long (his wife? Or ex-wife?), including kidnapping and rape; however, he was only convicted of a single charge relating to slapping her in the face. The police wanted to retain a DNA sample taken in relation to the more serious charges, so they asked the trial judge, Susan Cohen, to make an order. And here’s where the Charter got a mention:

In the course of written submissions, an issue was raised on behalf of the respondent concerning the Charter of Human Rights. I had my preliminary views notified to both parties with a request for any further submissions on them, and no such submissions were forthcoming. I have not changed my preliminary views as then set out, except to note that although this matter bears a 2006 file number, the presentment was not in fact filed until July 2007. However, as that date, and indeed the whole of the trial, the jury verdict and the sentencing, occurred prior to the commencement of the Charter of Human Rights, the same reasoning applies and I am not satisfied that it has any application in this proceeding. The merits of the substantive argument can be left for another case.

Well, that’s pretty vague, but it seems obvious what’s going on. Judge Cohen is applying the dreaded Charter s. 49(2):

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

But, as readers of this blog – and anyone who bothers to read the Charter’s commencement clause – well knows, Part 2 commenced on 1/1/7. So, ‘the whole of the trial, the jury verdict and the sentencing occurred’ after the relevant commencement. Judge Cohen, like Bell J and VCAT Member Nihill before her, has got the date wrong, presumably misled by the Charter’s incorrect EM. That being said, again like Bell J, it looks like she may actually have gotten the right result, because, if R v Williams [2007] VSC 2 is correct, then the fact that Long was charged before 1/1/7 (as it seems he was) is enough to mean the Charter s. 49(2) applied. But that assumes that this DNA proceeding is part of the earlier one; no matter what date Cohen J was using, she should have considered that question.

Enough is enough, surely. This is now becoming quite a trend. Isn’t it about time an urgent all-points bulletin was sent to all judges pointing out the correct date in Charter s. 49(2)?

It’s a pity that Cohen J (mis-)applied Charter s. 49(2), because I would have liked to have known more about the Charter arguments in this case, which raise a potential conflict between Victoria’s DNA sampling regime and the Charter.

The right to orgy

I wasn’t really expecting this to become a sex, planning and mental health blog, but what can I do? Today’s long expected decision upholding Max Mosley’s claim for breach of confidence against the venerable News of the World is a key example of a statutory human rights law having a transformative role on ordinary law and, through it, ordinary life. It’s possible that, with this case, the UK tabloids will reel back some of their most intrusive reporting on British celebrities. Mosley v News Group Newspapers Ltd [2008] EWHC 1777 is a perfect example for Bob Carr and James Allan to use to criticise the horror of rights-crazed activist judges. Off you go! [EDIT: And now Allan has. Naturally, his column downplays the judge's finding that the NotW was wrong about the 'Nazi' claim, as such factual issues get in the way of Allan's agenda of portraying all human rights cases as exclusively about values. .]

Mosley’s celebrity status is (or, more accurately, was) due to his Presidency of the FIA, which runs Formula One racing (including Melbourne’s own Grand Prix? Beats me.) This, it seems, was reason enough (if a reason was needed) for NotW to expose Mosley’s penchant for S&M, complete with pun-laden front-page and inside-the-fold spreads (“THE PITS!”), photos (“TEA-TIME: Mosley after orgy) and, on its website, video footage of a couple of recent get-togethers (albeit with the naughty bits sensitively obscured by chequered flags.) Unsurprisingly, Eady J found that this engaged Mosely’s right to privacy under the ECHR, which is similar to Victoria’s Charter s. 13(a):

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

Eady found that sexual conduct in private is (or, in Mosley’s case, was) pretty damn private and that clandestine recordings are a pretty big interference. He rejected arguments that Mosley’s orgies weren’t so private, due to the involvement of multiple people, video cameras and money. He also noted that a NotW journalist’s subsequent threats to name other paid participants in the orgy unless they gave an interview was also a breach of their human rights (not to mention, most likely, the law on extortion.) The significance of this is that it brought Mosley’s claim within the modern human-rights-crazed British law of confidentiality, which now protects confidentiality even when there’s no pre-existing relationship between the claimant and the defendant. (It should be noted, though, that Eady also found that Mosley’s claim was also within old-style confidentiality law, due to his contract with the rogue hooker – woman E – who spilt the beans to NotW for £25,000.)

That wasn’t the end of the matter, of course, as NotW could rely on a human right of its (or, more precisely, its readers’) own, the ECHR equivalent to Charter s. 15(2):

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds…

The balancing of privacy and expression came down to whether there was a public interest in Mosley’s private practices. Eady quickly dispatched of NotW’s claims that Mosley’s parties needed to be outed for their criminality, depravity and adultery. (Mosley’s wife was the only one with a particular interest in the latter.) But NotW had another angle, both in its papers and in court: that Mosley’s parties were, NotW alleged, Nazi-themed. This fact gained some significance in Mosley’s case because, according to NotW, his family had Nazi links: indeed his parents were married at Goebbels’s place with Hitler as a guest of honour.

Alas, for NotW, Woman E didn’t testify at the hearing, so the paper had to rely on the video. Eady’s approach was to studiously compare the video (of an alleged concentration camp scenario) to actual life in a concentration camp. The role-playing failed to match-up, what with the ‘judicial scenario’ (Mosley was apparently in a concentration camp for crimes, rather than ethnicity); the English names for various players; and even the horizontally striped uniforms (whereas the real camps used less flattering vertical stripes.) There was, of course, the small matter that various conversations occurred in German (albeit with sexual, rather than genocidal, content) and that one of the women yelled out that she was ‘an Aryan blonde’ (although that followed another woman’s claim that “Brunettes rule!”, which doesn’t entirely capture the full philosophy of Mein Kampf.) But, as Eady sensibly pointed out, if Mosley had wanted a Nazi theme, then there were plenty of places in Britain where he could get actual Nazi costumes (as all royal followers well know.) The result: he got a tidy damages pay-out and NotW were also up for Mosley’s yooge legal fees. (NotW avoided exemplary damages, though, because Eady accepted that they really did think Mosely was a Nazi.)

So, does that mean that Victorian celebrity S&Mers can now orgy with peace of mind? Alas, no, due to the technical human rights issue of ‘horizontal effect’.