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.

Nettle’s Charter dodge

When I went and watched part of the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, Maxwell and Weinberg seemed set to throw the Charter at the government, while Justice Geoffrey Nettle seemed to be sitting on the sidelines and even throwing the government a bone or two. That just goes to show that my lousy predicting ability is quite robust. As previously posted, the chatty duo bizarrely didn’t apply the Charter, while Nettle, seeing more value in comity, felt that only the Charter could justify ditching Callaway’s interpretation of s11 of the SSOMA from just two years ago.

And Nettle promptly applied the Charter to do just that. This is, of course, quite exciting: perhaps only the second time the Charter has actually made a difference to the outcome of a case (albeit, on this occasion, only the difference between a majority and a unanimous new interpretation.) Some will see more excitement in Nettle’s discussion of the interpretation mandate:

I acknowledge that, if TSL, Tillman and Cornwall are regarded as having been correctly decided according to ordinary conceptions of statutory construction, it must also be accepted that Parliament’s intention at the time of enacting s 11 of the Act was that ‘likely’ need not mean more likely than not. To adopt now the construction which I prefer is to accept that the intention has changed. But that appears to be the way in which the Charter was intended to operate.

It’s great to see that he’s clearly read Charter s. 32, even giving a bit of lip service to the purposive limitation. And he’s even read some overseas cases on rights compatible interpretation. Glory be. In particular, he adopted the discussion of the UKHRA interpretation mandate by Lord Woolf in Poplar Housing:

(a) Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention).

(b) If the court has to rely on section 3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility.

(c) Section 3 does not entitle the court to legislate (its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3).

(d) The views of the parties and of the Crown as to whether a ‘constructive’ interpretation should be adopted cannot modify the task of the court (if section 3 applies the court is required to adopt the section 3 approach to interpretation)

The last of these principles is the most exciting, giving some hope that the Victorian judiciary will break free of slavishly parroting of the most intelligible of the lawyers before it. The second-last, while question-begging, is a reasonable point (and Nettle later tantalises us with an almost-endorsement of Ghaidan, not that UK-style interpretative high-jinx are needed to read ‘likely’ as ‘probable.’)

The first two points, alas, are the Charter-marginalising ‘ordinary interpretation first, Charter interpretation last’ method. Nettle says that he prefers this to Elias CJ’s dissent in Hansen due to its ‘clarity and simplicity’, not to mention its endorsement by Anthony Mason in his post-constitutional-senility life in Honkers. But: (1) The dispute in Hansen was about the interaction between the interpretation mandate and the reasonable limits provision, which is a combination peculiar to Victoria, the ACT and NZ, and doesn’t arise in the UK or HK. (2) Any chance, Nettle, of doing some freaking interpretation of the Charter, i.e. reading its words and structure, looking into its history, etc? Since when have ’simplicity’ and ‘clarity’ been the sole test of a major structural question in a statute? Believe it or not, fundamental rights laws tend to raise some other issues too!

Still, all up, this is a rare instance this year of someone treating the Charter as something other than a bunch of soft suggestions. As Nettle says:

I consider that the interpretation of s 11 of the Act which was adopted in TSL is now inconsistent with an offender’s right to move freely within and without Victoria and the offender’s right to privacy, if not his or her right to liberty. It follows from Lord Woolf’s second direction in Poplar that the Charter cannot be ignored. Consistently with his Lordship’s third direction, however, I consider that to construe ‘likely’ in s 11 as meaning ‘at least more likely than not’ is within the permissible ambit of interpretation, well short of the forbidden territory of legislation.

Are you listening, the rest of the Victorian judiciary? Stop ignoring it.

Alas, Nettle’s relatively solid command of the operative provisions was not matched by his analysis of the rights provisions and the central notion of compatibility. His central reasoning appears in this dross:

Evidently, the purpose of s 11 of the Act is to guard against the dire consequences of the commission of a relevant offence. In some circumstances, that might justify significant encroachments on an individuals rights of freedom of movement and privacy and even liberty. But if ‘likely’ in s 11 of the Act is construed as including a less than even chance, it is capable of rendering the requirement for satisfaction to a high degree of probability illusory. For example, one might, well be satisfied to a high degree of probability (say, 80 per cent) that there is a 45 per cent chance of the commission of a relevant offence, and yet, according to the laws of probability, the risk of the commission of the offence as so assessed would be only 36 per cent. That would mean that a relatively low risk of re-offending could provide a sufficient basis for making an order. Even giving full weight to the purpose of s 11, I cannot conceive of the potentially far reaching restrictions on rights provided for in the Act as being capable of demonstrable justification in the relevant sense unless the risk of an offender committing a relevant offence is at least more than even.

Frankly, I just cannot believe that this is all he could come up with after three days of hearing.

The weakness of Nettle’s reasoning is evident in the very numbers he comes up with.

The Charter vs VGSO

Well, the year hasn’t ended with a bang, but there’ve been heaps of Charter whimpers, even one in the High Court. But, before I get to all of those, there’s also been some negative press about the Victorian Government Solicitor’s Office, which raises (in my mind at least) some interesting Charter issues.

One story involves an intra-University dispute:

Last week, government solicitor John Cain jnr sent a letter to James Doughney, a member of the university’s governing council, demanding he publicly apologise for “false and defamatory allegations” in an attack on a plan by university leadersto cut jobs. The letter says the university’s chancellor, Supreme Court judge Frank Vincent, and vice-chancellor Elizabeth Harman, reserve their rights to take legal action if Dr Doughney does not withdraw and apologise for his comments.

In October, The Age revealed Dr Doughney had sent a six-page letter to state and federal MPs accusing Professor Harman of using a “pea-and-thimble trick” to create a cash crisis to justify slashing 270 jobs. With Victoria University and the tertiary union in an industrial dispute, Mr McGowan said the defamation threat was an attempt to intimidate Dr Doughney in his role as state president of the union. Dr Doughney, an economist and elected staff representative on the university council, has said it was extraordinary for the chancellor to use a government solicitor in a bid to “gag” an academic.

As they say, disputes within Universities are so bitter precisely because so little is at stake. This story really only got attention because it involves some non-University players: a sitting judge and the head of the VGSO. The NTEU thought that the government should butt out, but the Attorney-General snapped back that Victoria Uni is the government:

Mr Hulls’ spokeswoman, Meaghan Shaw, said Victoria University was a statutory entity. She said the institution had been a client of the Victorian Government Solicitor’s Office for some years.

But sometimes it’s not so fun to be the government, depending on whether you fall within the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);…

So, who’s a public authority here?:

• Victoria Uni? This isn’t entirely clear. It’s definitely a ’statutory entity’, so it’s a public authority if it ‘has functions of a public nature’. Is tertiary education a function of a public nature? I bet that question taxes University heads every day.

• Frank Vincent? (whose free speech credentials shone through in the Underbelly judgment.) This is clearer, but there’re two murky catches. He’s definitely a ‘public authority’, because he’s a ‘public official‘ under the Public Administration Act 2004, which includes judges, magistrates and the like. (He’s probably also a holder of a statutory office too, through his Chancellorship.) But one question is whether he’s a ‘court’ (or is that strictly his day job?) and then whether his Chancellorship is a non-administrative function under the dreaded Charter s. 4(1)(j). The other is whether his little letter to Dr Doughney, threatening a private law action, is an ‘act of a private nature’? So very murky. 

• VGSO? This is the clearest. I can’t be bothered tracking down what VGSO is, exactly, but it’s almost certainly a public entity and, hence, a public official, and hence a public authority (gawd.) (If not, then things depend on the status of VU, as VGSO in this case is acting on behalf of them, right?) 

Anyway, the NTEU and Dr Doughney will be thrilled to know that that means that there’s no way that VGSO would do anything that was incompatible with human rights, including Dougney’s freedom of expression:

…[F]ormer Melbourne University vice-chancellor David Pennington said it was “silly” and “nonsense” for Dr Doughney to suggest the conflict was about academic freedom of speech. “It is not an issue of academic study and expertise, he told The Age. Professor Pennington said Dr Doughney was in a conflicted position in his roles as the elected academic representative on the university’s governing council and his position as the union’s state president. “This is a matter of political and industrial positioning.” Dr Doughney had the right to participate in the decision-making process of the university’s council, Professor Pennington said, but his primary responsibility was to the “institution and the corporation”.

Well, that’s a relief. But Doughney shouldn’t have worried anyway. Victoria’s top lawyer, Pamela Tate, is a member of the Australian Academy of Law and (until two months back) was on the advisory committee to Melbourne Law School’s Centre for Comparative Constitutional Studies. No way would she have a bar of any infringements on academic freedom.

The other story is the long-running saga of Mark Morgan, the Castlemaine solicitor whose miseries started after he won a heady victory for the victims of some dodgy police conduct. The police, mostly still on the job, were too poor to pay, but Morgan initially got an order for Victoria to pick up the tab. Alas, that victory triggered demands from Morgan’s ‘no win no fee’ barristers that they get paid, which wasn’t looking like it’d happen anytime soon because Victoria was appealing. The barristers convinced Morgan, who was no longer acting in the case, that he should promise the court that he’d repay the fees to Victoria in the event that it won its appeal. Of course, Victoria did and Morgan is up for a lot of money, as neither the police officers (ever) nor  the barristers (initially) paid up. According to the Court of Appeal, the VGSO officer in charge named Hugh McArdle got pissed off at Morgan (in part because he mistakenly thought a failed contempt action by the barristers had Morgan’s backing) and threw the legal book at him, demanding payment despite further High Court proceedings and the absence of any time-condition on Morgan’s undertaking, and threatening and eventually bringing contempt actions.

Alas, McArdle’s contempt action was a bridge too far. This wasn’t clear at first, because County Court judge Pamela Jenkins found Morgan guilty and made nasty sentencing remarks that caused Morgan a world of trouble with the profession (which, of course, made it even more difficult for him to meet his debt to Victoria.) But, yesterday, in Morgan v State of Victoria [2008] VSCA 267, three appeal judges found that the contempt action was untenable in multiple ways, mostly connected to the failure of either the undertaking or later orders that replaced it to specify a time for Morgan to pay his debt. The Court gave Jenkins a big serve, for being overly happy to wave away service process rules,  for quoting a Bongiorno judgment out of context and for wrongly labelling Morgan’s wrongs extreme. Each of these errors probably piggybacks on errors by VGSO, which is the one who failed to comply with the rules and – just a guess, I dont know – just might have been the one who led Jenkins into error on Bongiorno’s wise words. The most newsworthy point is that the Court firmly disagreed with Jenkins sentencing remarks, instead noting that VGSO came to the party with very dirty hands:

Moreover, Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

Ooooh. See, it’s sometimes a good thing to be sued by the government!:

2. The obligation requires that the State of Victoria, its Departments and agencies:

(a) act fairly in handling claims and litigation brought by or against the State or an agency,

…

(c) avoid litigation, wherever possible,

…

(f) do not rely on technical defences unless the State’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(g) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim,…

But it’s not just the model litigant rules that VGSO is bound by.

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 Supreme Court vs the Charter

Ever since Bongiorno J brought down his decision in Gray v DPP [2008] VSC 4, applying the Charter for the first time, I’ve been hanging out for the Supreme Court to consider the question again. Back then, I was deeply unimpressed with Bongiorno’s analysis. It appeared to ignore significant elements of the operative provisions of the Charter. In that respect, it was a sign of things to come. Not reading the Charter has been the hallmark of Charter cases this year.  To my surprise, the issue of bail did not speedily return to the Supreme Court or the Court of Appeal. Newspaper reports revealed that Gray was applied in two later cases in the magistrates court. And then, nothing (published.) More recently, the VGSO seminar and an annual report revealed, with no apparent embarassment, that the magistrates courts simply stopped applying Gray. If true, that’s a surprising approach to precedent and sends a dire message about the significance of Charter precedents, even flawed ones.

Today, over ten months after Gray, the case has, at last, returned to the Supreme Court. In one respect, that’s an exciting development: the first time that the Supreme Court has been asked to apply an earlier Charter judgment setting out rights and an operative response. (The only other Charter judgment that’s been cited in the Supreme Court is R v Williams [2007] VSC 2, but that’s just an authority for not applying the Charter.) Alas, in other respects, Re Dickson [2008] VSC 516, is an appalling development, responding to Bongirono’s non-analysis of the Charter with some opposing non-analysis. The Victorian judiciary’s complete inability to do the slightest justice to a short, important statute is stunning, depressing and the entrenched norm.

George Dickson is, it seems, an even less appealing Charter rights claimant than the Charter’s first ever beneficiary, Kelly Gray:

Mr Dickson is charged with 25 counts of armed robbery and 4 counts of attempted armed robbery alleged to have been committed between August and November 2006. The offences apparently all involve armed robberies or attempted armed robberies on 24 hour convenience stores. These are serious offences involving a disguised offender using a knife. The offences involved the removal of, in some cases, tens of dollars and in other cases several hundreds of dollars. Mr Dickson has prior convictions for armed robbery in Victoria and Queensland….

On 3 April 2008 the applicant was sentenced in the County Court of Victoria for obtaining property by deception to 180 days’ imprisonment. On 23 April 2008, the parole on which he had been released in relation to earlier offences was cancelled. He has remained in custody and, as I understand it, has been serving pre-existing sentences and breached parole for a significant portion of the time since then. I am told that even if he were granted bail in this Court, he would not necessarily be released unless he was granted parole. It is by no means clear that would occur either.

But he has a number of things in his favour. First, he was charged on 20th March 2007, bringing him within the Charter’s stupid transitional provision. Second, the relevant bail provision at issue is the same one as was at issue in Gray (another alleged armed robber):

4(4) Where the accused person is charged-… (c) with an… offence in the course of committing which the accused person… is alleged to have used or threatened to use a firearm, offensive weapon, or explosive… the court shall refuse bail unless the accused person shows cause why his detention in custody is not justified…

Third, thanks to the Crown’s decision to lead extensive similar fact evidence at his trial (thus blowing out the expected length of the hearing to three months and requiring a rescheduling), he will spend a minimum of two years and three months in prison awaiting his trial. Indeed, he has already spent a year-and-a-half, engaging the second and third limbs of this interesting right:

21(5) A person who is arrested or detained on a criminal charge- (a) must be promptly brought before a court; and (b) has the right to be brought to trial without unreasonable delay; and (c) must be released if paragraph (a) or (b) is not complied with.

Justice Lex Lasry had this to say about the question of whether or not the ‘delay’ was ‘unreasonable’:

The phrase “unreasonable delay” is not otherwise defined and nor would one expect to be. It must be regarded as descriptive given the particular circumstances. The section also appears to imply that for a delay to be “unreasonable” it would have occurred for reasons not attributable to the fault of the applicant. It was submitted on behalf of the applicant in this case that a total delay of two years and three months is unreasonable. That would be a difficult proposition to reject.

Who knows why the section ‘appears to imply’ that the delay musn’t be attributable to the applicant? Does it say that somewhere? But, anyway, it’s accepted that, in this case, the delay is attributable to the Crown (in belatedly seeking to adduce reams of similar fact evidence) and, perhaps, the County Court, which is notoriously suffering considerable delays. Anyway, Lasry’s finding that 21(5)(b) is satisfied is unequivocal. So, that means that Dickson has the right ‘to be released’. Right?

But, suddenly, Lasry decides to stop reading the Charter and instead goes about the task of distinguish Gray. Not, mind you, on the basis that Gray ignores the Charter’s operative provisions, but rather becuse the facts are different:

It is not submitted on behalf of the applicant before me that he will spend more time in custody than he is likely to serve upon a sentence particularly bearing in mind that his present custody involves revoked parole and is not simply pre-sentence detention. In Gray his Honour further concluded that the applicant was not a flight risk and there was little tangible evidence to suggest that the applicant would interfere with witnesses. Ultimately, his Honour concluded that the applicant had established that his continued incarceration was not justified and he was released on bail. What his Honour’s ruling demonstrates is that the Charter has a significant role to play in emphasising the importance of particular rights, but when it comes to the right to be brought to trial without unreasonable delay, that right remains to be considered within the appropriate or relevant provisions of the Bail Act.  I note at this point that in my opinion the circumstances confronting his Honour in Gray are quite different from those before me. First, in this case given the particular circumstances a significant amount of the applicant’s time in custody might not be reckoned as pre-sentence detention. Second, given Mr Dickson’s mental condition and its apparent connection with his offending, there is a risk that he might commit further offences if he were released. It is put by Mr Atkinson that there is also a risk of interference with witnesses although Mr Atkinson accepts that such a risk is more circumstantial than actual.

These are, indeed, all important differences. But they don’t change the fact that the terms of Charter s. 21(5) are engaged, including Charter s. 21(5)(c), one of the few uneqivocal rights to a remedy that appear in the Charter. Gray, by contrast, didn’t engage Charter s. 21(5)(c), as he had not, at the point of his Supreme Court application, been delayed too long. Instead, the only right he had engaged at that point was Charter s. 25(2)(c), which contains no remedy provision.

So, instead, the question is one of operative provisions. Here’s the argument made by Dickson’s counsel;

Mr Traczyk submitted on behalf of the applicant that the enactment of the Charter has brought about a significant change in the law in Victoria. Prior to the enactment of the Charter, it was submitted, there was no legal right to a speedy trial in Victoria. Mr Traczyk however submitted that s 21(5) of the Charter has clearly created a legal right to be brought to trial without unreasonable delay. It was further submitted that the Charter requires that the provisions of the Bail Act must be interpreted in such a way as to give full effect to this right. Indeed it was initially submitted, on behalf of the applicant, that where a person has been held in custody for a period of time which a court determines is unreasonable, that person should be released on bail, regardless of any other circumstances.

Now, that’s a far from perfect argument, as it appears to treat Charter rights as operative on their own and fails to note the caveats to the interpretation mandate. But, on the other hand, it clearly identifies the relevant operational provision being relied upon. Later, Traczyk makes a less extreme submission:

Mr Traczyk further submitted that even where an unacceptable risk has been shown, the overriding question in determining whether an individual should be released on bail in cases where delay is cited as exceptional circumstances or good cause is whether release on bail is required to give full effect to that individual’s right to be brought to trial without unreasonable delay.

That doesn’t seem to bad an argument. Moreover, Traczyk had a plan to manage any risk posed by Dickson:

It was submitted by Mr Traczyk that if I were inclined to release Mr Dickson on bail I could impose a condition in general terms that he not be released unless and until he was granted parole and that if that occurred, that within 48 hours of release, he report to the North Western Mental Hospital and from then on obey the lawful directions given to him at that institution. Mr Traczyk provided to the Court, on the applicant’s behalf, a letter addressed to the solicitors for the applicant and signed by Ms Elizabeth M. Williams, Psychiatric Nurse at North Western Mental Health. The letter, which is dated 21 November 2008, indicates that should Mr Dickson be granted bail, the clinic at Northern Hospital can offer a Case Management Intake Assessment to the applicant on Friday, 28 November 2008.

A potentially neat case-specific solution to s4(2)(d)’s ban on releasing people who pose an ‘unacceptable risk’. Indeed, there also seems to be an equal protection argument based on Dickson’s diagnosis of schizophrenia, which Lasry was concerned wouldn’t be effectively treated in jail. 

So, isn’t it time, at long last, for a Supreme Court judge to give serious consideration to the meaning and effect of Charter s. 32(1) Alas, no:

I cannot conclude that the Charter requires that the Bail Act be interpreted to allow for an accused to be released on bail, regardless of an established unacceptable risk, whether it be a risk of flight, re-offending, interference with witnesses or otherwise. Section 1(2) of the Charter provides, in relevant part: The main purpose of this Charter is to protect and promote human rights by— (a) setting out the human rights that Parliament specifically seeks to protect and promote; and (b) ensuring that all statutory provisions, whenever enacted, are interpreted so far as is possible in a way that is compatible with human rights; …  Section 1(2)(b) of the Charter requires that other statutory provisions be interpreted “so far as is possible” compatibly with human rights. The provisions of the Bail Act contain no reference to delay or to a right to a speedy trial. In this particular case, the Bail Act requires me to refuse bail unless the applicant shows cause why his detention in custody is not justified.

Charter s. 1???? What freaking planet is Lasry from? That’s the Charter’s purpose provision. It doesn’t have any operative effect. Here’s what the relevant operative provision says:

32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights. (2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

Now, granted, it so happens that Charter ss. 1(2)(b) and 32(1) are in pretty much the same terms. But whereas the former is an aspiration, the latter is a legal command. There’s a ‘must’. There’s also a clear reference to relevant comparative law. And there’s also a requirement that any interpretation be consistent with a provision’s purpose. Relying on Charter s. 1 is the kind of thing a (poor) undergraduate student (or Mirko Bagaric) would do.

Now, it’s clear that Lasry thought that the suggested interpretation went beyond what was ‘possible’ under the Bail Act, something Bongiorno failed to consider. Good for him.

But: (1) Lasry doesn’t explain why the Bail Act can’t possibly be interpreted in that way. What words stand in the way? And why? Overseas judgments have made it clear that the natural or settled meaning of words is no barrier. Some go so far as saying that the words themselves are no barrier. Lasry seems to see things otherwise. But why? (2) While, I certainly think it’s arguable that s4(2)(d), which bars bail for people who are an ‘unacceptable risk’, is pretty hard to get around, it’s less clear that the wording of s4(4)(c) is similarly unmalleable, so surely Lasry had to consider whether or not those words needed to be re-interpreted to permit release in a case of unreasonable delay? (3) Lasry neglects any consideration of the purpose of the Bail Act too, which might be a more sound reason to reject the argument put by Gray. (4) Also, if Lasry is right that the Bail Act ‘cannot be interpreted consistently with human rights’ then shouldn’t Lasry be mulling over the need for a declaration of inconsistent interpretation, which would of course require both notice and a consideration of Charter s. 7(2)? (5) I know this doesn’t seem to have been argued, but isn’t there also a conduct mandate issue too, in relation to the OPP and, perhaps, the County Court’s registry?This argument would face some hefty Charter s. 38(2) & 39(1) hurdles, of course, but the remedy of habeus corpus could be apt. (The fact that Dickson was confined on other charges would, of course, seem to be a barrier to them.) Alternatively, there’s the remedy of a stay, which seems to be the (controversial) Canadian approach.

[EDIT: And, (6) When I think about it, the specific reason for Dickson's delayed trial - the Crown's apparently belated decision to lead lots of similar fact evidence and the County Court's willingness to adjourn to accomodate that - seems to carry lots of opportunities for a remedy for Dickson, although it may be too late now. Wouldn't a better response have been to tell the Crown that if it wanted to move the trial date, it'd have to accept the bail of Dickson?]

Eh, why even bother listing all these things? They all assume that judges have even the slighest interest in what the Charter actually says.

The right not to be hurt

A tiny Supreme Court judgment from a month back has appeared on Austlii. Daniels v Bayside Health [2008] VSC 472 involves an unrepresented man who is convinced that his son’s health and, possibly, his life is in danger from treatment he is receiving as an involuntary patient under the Mental Health Act 1986 at Thomas Embling Hospital. Bernard Daniels has been told be Dr Yolanda Lucire, a Sydney doctor, that his son Garth has been misdiagnosed as a schizophrenic and instead has had a variety of other conditions for the last ten years. Her opinion is that the treatment Garth is receiving, valium and zuclopenthixol, is likely to cause harm to him, in particular to his muscles. The treating doctors acknowledge that the medicine has its risks, but dispute the doctor’s diagnosis of a complicating condition called neuroleptic malignant syndrome.

Daniels senior lodged a review with the Mental Health Review Board but turned up at the Supreme Court because he wanted the medication stopped prior to that review. The Mental Health Act requires that all patients (and, presumably, as appropriate, their guardians) be told their rights. Recent new regulations specify that involuntary patients be told of their Charter rights in these terms:

The Victorian Charter of Human Rights and Responsibilities Act 2006 seeks to promote and protect certain human rights. The Charter defines the protected rights and requires public mental health services to act compatibly with these rights. The Charter also specifies when and how rights can be limited by law. For example, under the Mental Health Act 1986 you may be detained in a mental health service if it is necessary to protect your health or safety or the safety of others. However, any restrictions on your liberty and any interference with your rights, privacy, dignity and self-respect must be kept to the minimum necessary in the circumstances. If you have any questions about the Charter or how it might affect your treatment, contact one of the organisations described at the end of this statement.

This does a nice, if inevitably inadequate job, of explaining the nuances of the Charter. It doesn’t, for example, address the complex issue of whether the Charter places some fundamental new limits on treatment, notably when the treatment is a threat to someone’s health, as Lucire alleges in this case. The statement directs patients wanting more information to VEOHRC. It’d be interesting to know what they’d say in this circumstance.

Daniels senior raised the Charter in these terms:

In the course of his argument, Mr Daniels has raised a large number of matters, many of which are not really matters which I need or can determine at this stage. He raised questions of procedural fairness, the entitlement of his son not to suffer torture under the Charter of Human Rights and Responsibilities 2006, the entitlement of his son not to suffer death or to be at risk of death under the Charter.

Not a bad effort. Daniels has obviously read Charter ss. 9 and 10. The difficulty for him, alas, was that, testifying by phone before the Supreme COurt, Lucire didn’t support the claims of threats to Garth’s life or that there was an intermediate risk, e.g. to his heart muscles. 

Daniels’s reference to procedural fairness – it’s not clear what fairness issues were at stake – was presumably to Charter s. 24. At the Protecting Human Rights conference, I observed that the Attorney-General, intervening in a Mental Health Review Board matter, was described in the judgment as submitting that the right to a fair hearing doesn’t apply to mental health matters. However, Joanna Davidson, in the audience, publicly and firmly objected to my ‘mischaracterisation’, insisting that the issue only arose in passing and that she only canvassed the law briefly. Her vehemence carried the clear implication, before an audience with considerable interest in this matter, that the Attorney-General would never take such a miserly stance. That very public exchange would be quite a relief to many stakeholders in mental health, including Daniels. 

Justice David Byrne treated the matter with appropriate flexibility, deeming it to be an application for an interim injunction for a variation to Garth’s treatment order (even though no application was actually filed.) However, the application was dismissed:

In the circumstances and given the limited area of my concern in this type of application, I find myself not satisfied that the current medication is so dangerous as to warrant the intervention of the court, assuming that the court has the power to intervene in such a case. Accordingly, the application for interim injunctive relief must fail.

While Bryne’s stance is understandable, I’m not convinced that the test applied is appropriate in light of the Charter. While it’s clear that findings weren’t open about breaches of Garth’s rights to life and against degrading treatment, I think that things are a little different given a further Charter right:

More on the sex offenders’ challenge

I happened to be in the legal precinct today and dropped by to listen in at the sex offenders’ challenge in the Court of Appeal. Pamela Tate was speaking (presumably for the Secretary, rather than with her ‘neutral’ hat on intevening for the Attorney-General. At least, that’s sure how it sounded.) There were nine barristers there (presumably three each for the two fiends – I spotted Kris Walker. Some VEOHRC staff were there, but it didn’t look like the commission was intervening. [EDIT: Nope, they are intervening, and will speak after the S-G. So, maybe I'm wrong and the A-G was intervening too? It'd be handy if they could colour-code those wigs of theirs.] There was no talk of a declaration, so I assume none of the required Charter s. 36(3) notices are out on that one.  

It’s dangerous to try to sense the mood when you only watch part of a case – as the mood can be the opposite when the other side speaks – but the case didn’t seem to be going at all well for Tate, with Maxwell and Weinberg both hammering into her. Nettle was quieter and even helped her out every now and then.

Anyway, some tidbits I picked up:

• A comity of errors: One issue (possibly the only one) is the interpretation of ‘likely’ in s11 of the SSOMA. It certainly does seem to be in the cards that the CoA will overrule Callaway in TSM (despite only being a three-judge bench.) Indeed, both sides seemed to disagree with Callaway, with Tate describing his judgment as somewhat confused (which it is.) Hilariously, Tate’s argument is that Victoria should follow the present approach of the NSW Court of Appeal. Regular readers will recall that the NSWCA reached that interpretation reluctantly out of comity with Callaway in TSM! To sustain her argument, Tate had to claim that the NSWCA’s actually misinterpreted Callaway and somehow stumbled onto the right answer.  It’s hard to see how this sort of error can be persuasive, especially when the NSWCA clearly said that, but for comity, it wouldn’t have followed TSM at all but rather would have adopted a stricter standard (which, presumably, Tate thinks is the wrong standard.) Tate, trying to get away from Tilman, relied instead on the follow-up case, Cornwall. Readers will recall that Cornwall was the first bloke the NSWCA refused to detain, ruling that there was no ‘high degree of probability that he was likely’ to re-offend and that electronic supervision would do. He had his bracelet off and melted away within 30 minutes. Surprising that the Victorian government thinks that that’s the perfect test. I guess that Tate will argue that, although the NSWCA stated the correct test in Cornwall, they nevertheless misapplied it to the facts. 

• A non-’trivial’ bar: Tate’s big pitch was that, whatever the test is, it shouldn’t be quantitative. That’s because she knew that the court would then go for the ‘more likely than not’ standard that the NSWCA would have backed were it not for TSM, which would certainly narrow the SSOMA scheme. Not that she said that; rather, she argued (1) it would go against the legislature’s choice to use the word ‘likely’, which she claimed (to Weinberg’s incredulity) wasn’t quantitative. Maxwell kept point out that all that was clear is that the test isn’t normative (e.g. a Briginshaw-like standard that re-adjusted itself according to what issues were at stake.) Tate very reluctantly agreed with that. 2) It would encourage over-reliance on statistical expert evidence. Weinberg’s response was that the best way to stop statistical evidence is to stop asking for it and listening to it. Maxwell was concerned that trial judges need an intelligible standard. He could hardly keep a straight face when Tate suggested that defining ‘likely’ to mean ‘a sufficiently substantial risk’ would provide the required certainty (and wouldn’t be ‘normative’.)  The judges then mooted the idea that the bar should be high indeed, given how extraordinary ESOs are. Tate firmly stated that the bar should not be ‘trivial’. That’s quite a concession. She then embarked on some stats to show that of the 150 eligible offenders released last year, the Secretary only called for reports on 34 and only sought orders on 10. Of those tenm seven were granted and the other three were… pending. Weinberg asked whether that meant that none had been refused. ‘Um’ retorted the S-G, until Weinberg pointed out the math. Tate countered with more stats, which suggested that of 40 court applications to date, ’several were withdrawn’, one was reversed on appeal and one was rejected. A high bar indeed. Attrition stats are always tricky in a discretionary system aren’t they?

• A non-criminal process for locking up criminals: ‘So, you’d better address Charter s 7(2) then’, said Maxwell. Uh, there’s an intervening step, said Tate: have any rights been limited? That is indeed true, but why she wanted to embark down that road is beyond me. But embark she did, passionately arguing that Charter ss. 25(c), 26 and 27 didn’t apply because of Fardon, the High Court’s umpteenth refusal to apply Kable. Maxwell was a bit dubious about the relevance of Chapter 3 to the meaning of ‘punish’, but Tate pressed Gummow’s  ’normative scheme’ approach. According to Gummow, ESOs are nothing at all like criminal sentencing, because ESOs are simply triggered by guilt but are imposed for other reasons. As opposed to sentencing, which… um…. anyway. Tate also mentioned a UK case that Maxwell snorted was about non-contact orders, not supervision. Somehow, the model litigant didn’t see fit to talk about Belcher, where the NZCA held that almost identical legislation was punishment for the purposes of NZBoRA’s criminal process rights. I guess that’s in the written arguments. But why wouldn’t she be responding to what her opponents said on that? I hope they know about it! Weinberg raised the fact that SSOMA says that proceedings are criminal. Tate said that was not-determinative but just a starting point and was just a mechanism to ensure that the Secretary had the same obligations as a prosecutor. Weinberg was confused: does the Secretary usually have less obligations than a prosecutor? Nettle chimed in with something about having to call adverse witnesses. Maxwell suggested that, if the proceedings are criminal, then maybe contested facts need to be proven beyond reasonable doubt? Tate said she was sur that the test was balance of probabilities. But you’ve gotta wonder if that will be true in 2010 when s141 of the Evidence Act 2008 kicks in.

• ESOs and helicopter mums: Tate did concede that ESOs limited one right: freedom of movement. (It’s not clear whether or not the fiends raised any others. Self-incrim, alas, didn’t get a look-in.) So, it’s time for 7(2). Tate started by saying that you need to look closely at the nature of the right. Weinberg said: movement’s pretty important isn’t it? It’s essential to liberty. Tate argued that, at international law, ESOs don’t engage the right to liberty at all. Maxwell asked her to say that again so that no-one misunderstands it. Ouch. She valiantly insisted that ESOs could be likened to mum and dad telling the kids to phone then when they get to their destination. Weinberg pointed out that, regardless, movement was high on the scale in 7(2)(a). Tate sounded unhappy about that. I wonder what’s high on her scale? Life, I guess. What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

And that was it for the day. They’re at it again tomorrow, but I’ll skip it.

Again, caution is necessary, but Tate seemed to know that she’s going to ‘lose’ at least 2-1, in the sense that the judges are going to toughen up the TSL threshold to ‘more likely than not’, at least and cite the Charter as the reason. I can’t help but think that Tate is just going through the motions now and planning a High Court appeal, where the judges who were in the majority in Fardon will presumably be more sympathetic to her take on things.

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 bite

Friday’s other Charter case – or, more exactly, other passing mention of a possible future application of the Charter by a dissenting Court of Appeal judge – was a criminal appeal, R v De Simone [2008] VSCA 216.

In 2004, businessman, property developer and walking criminal law exam problem Giuseppe de Simone was shopping for groceries at the Coles in Barkly Sqaure, Brunswick. Alas, his shopping, while otherwise routine, included opening a four-pack box of ice-creams and eating one of them, an event observed by two store employees. When de Simone fronted at the check-out, the box was nowhere to be seen and he made no mention of it. After he was challenged, he claimed to have forgotten about it and offered to pay for a whole box and keep only three of the ice-creams. The store manager would have none of that, insisting that he pay for the whole box and keep none of them.

After that promising start, things went downhill. Voices were raised. The store manager tried to stop de Simone from leaving. A secutity guard intervened and the police were called, responding to a claim that someone was being ‘aggressive’. When the two cops arrived, an argument erupted and all three ended up on the ground. It was at that point that de Simone bit Constable Baynes on the forearm. De Simone later insisted that he was being suffocated and needed to bite the officer to breathe. The incident quickly led to the use of handcuffs, capscium spray and the issuing of charges of theft, intentionally causing injury and assaulting a police officer. 

Alas for my law students, the interesting theft charge was dropped. Although de Simone was convicted of the other charges and fined $6000, the Court of Appeal unanimously allowed his appeal on the grounds that the trial judge fluffed his response to a jury request to read the transcript of evidence of eyewitnesses to the events before the bite. They generously entered an acquittal, on the ground that a new trial would be ‘a scandalous waste of public money’, though Mark Weinberg JA chastised de Simone as foolish and pointed out that his actions were costly for both himself and the community. Oh, that wasted unfinished box of ice-creams! (It seems that de Simone has a habit of getting into these sorts of tangles.)

The Charter issue arose in relation to a further question (which wasn’t necessary to decide) about the legality of the police’s actions. Except in special circumstances, police cannot use force to arrest someone without first telling them that they are under arrest and the reasons for that arrest. De Simone testified that the police didn’t tell him he was under arrest, but rather just leapt on him while he was loudly asking to see a lawyer. Several independent witnesses didn’t hear the arresting words either. But the police insisted they went by the book. Justice Neave discussed the possibility that the police said the words but de Simone didn’t hear them, noting that there was a line of authority that suggested that the lawfulness of an arrest depends on what the police said, not what the arrestee heard. Believe it or not, one UK precedent involved the arrest of a deaf man who couldn’t lip-read. Neave footnoted that precedent (and the more routine scenario of an arrestee who can’t speak English) with the following comment:

Query whether this conclusion could be challenged under the Charter of Human Rights and Responsibilities Act 2006.

Like Warren CJ in the other Charter case brought down that day, Neave unfortunately didn’t state which right she had in mind.

The Charter’s complex war on terror

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Charter and risk assessment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Playing the Charter card

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

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

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees- (a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and (b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and (c) to be tried without unreasonable delay; and (d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and (e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and (f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978…

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

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

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

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

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:

A judgment at last!

Many thanks to Phil Lynch at HRLRC for forwarding me a judgment of the Mental Health Review Board, brought down on Tuesday. And here’s the excitement: of its 43 pages and 247 paragraphs, about half of them  – particularly 12 pages and 53 paragraphs of actual analysis by the Board – aredevoted to the Charter. That is easily more Charter analysis than has appeared in all the reported Charter judgments in Victoria combined. In fact, I’m pretty sure that it’s more than anything that has appeared in all the ACT judgments on the HRA combined as well. It is, in short, what I’ve long been waiting for: a detailed, step-by-step, analysis of some key operational and rights provisions of the Charter in an actual contested tral, where it’s obvious that both parties have made full arguments on these points and the decision-maker has taken those arguments seriously.

The downsides: It’s not a formal precedent in any way, as the MHRB is not a court. Indeed, the MHRB doesn’t even have to be comprised of lawyers, though any questions of law must be resolved by the Board’s legal member, in this case a Mr John Lesser. On the other hand, lawyers represented each side and the Attorney-General intervened and was made a party. The judgment doesn’t carry an official name and is not available on Austlii (whose database on MHRB judgments seems to have died sometime in 2006.) Nor is it available on the MHRB website. But perhaps it’ll be posted on the HRLRC website or somewhere soon enough. Anyway, I have it, thanks to Phil Lynch. [EDIT: Alas, the judgment isn't publishable as it needs anonymising. I'll refer to the man involved as 'the respondent', until I can come up with something better. For a detailed description and critique of the judgment, see Lynch's analysis. FURTHER UPDATE: The anonymised judgment has now been published here.]

Here’s the short summary (and it’s a weird and new experience indeed to have more than two lines to ’summarise’; it took me over an hour to read the thing once, and I will need to read it several times more!):

Back in 2005, the respondent was placed on a community treatment order (CTO) by his psychiatrist. CTOs are the mildest form of coercive power used against people with mental illnesses and are available when people have been made the subject of an involuntary treatment order (which can authorise someone’s detention for the purpose of being treatment) but a psychiatrist decides that detention isn’t necessary:

14(2) A community treatment order is an order requiring the person to obtain treatment for their mental illness while not detained in an approved mental health service.

(3) A community treatment order- (a) must specify the duration of the order, which must not exceed 12 months; and (b) may specify where the person must live, if this is necessary for the treatment of the person’s mental illness.

Clearly,  ‘Mildest’ doesn’t mean ‘mild’.  The respondent in particular is very unhappy about his and wants out of it, so he can stop taking his medication and move on to milder treatment like valium.

CTOs expire twelve months after they are made but they can be extended. GK’s CTO has been extended three times: in April 2006 (by the MHRB), in February 2007 (by the respondent’s psychiatrist) and January 2008 (again by his psychiatrist.) The problem is at the February extension was never reviewed by the MHRB as required by this provision of the Mental Health Act 1986:

30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.

As is often the way, s30(4) doesn’t specify any consequences for breach. The respondent argues that the breach meant that his CTO expired sometime in 2007 and that the purported extension in 2008 and the planned review of it by the MHRB that was about to happen couldn’t happen, with the result that GK is free to stop taking his medication until his psychiatrist restarts the whole process. But the alternative argument is that nothing happened to the CTO and GK remains subject to a CTO. So, the principal (but not sole) question for the MHRB is a question of statutory interpretation: what are the consequences of a breach of s30(4) of the Mental Health Act 1986? This question is a tricky one in statutory interpretation and their are competing High Court cases on the issue. Applying non-Charter law, the MHRB, perhaps unsurprisingly, rejected the respondent’s interpretation. But what difference does the Charter make?

The right to party!

The prosecution of a nameless teen, where every development in an otherwise mundane case is carefully tracked by the Victorian media, goes on and the teen’s fighting:

A VICTORIAN teen accused of producing child porn and creating a public nuisance will fight the charges in the Children’s Court. The eastern suburbs boy, 17, faced the court today ahead of a two-day contested hearing booked for August. His defence laywer told the court the public nuisance charge was unusual. The police prosecutor agreed he couldn’t find any other court matters where this charge had been laid.

The court heard five police and six civilian witnesses would be called to give evidence at the hearing, including a partygoer who made a statement to police about crowd behaviour. A handy-cam allegedly used to film a couple involved alleged sex acts was handed to police by the teen’s step-father, the defence lawyer told the court. The boy is charged with one count each of creating a public nuisance and producing child pornography. A magistrate extended his bail. He will appear again in court on August 18.

The teen may be able to take advantage of Victoria’s Charter. As I suggested when the teen was first charged, the bringing of major charges in a case like this seems quite weird.

Dodgy parties, if they merit criminal prosecution at all, can be charged with all manner of summary offences, including ‘playing at a game to the annoyance of anyone‘, ‘footpath obstruction‘ and abetting ‘drunken disorderliness in a public place‘, as well as some standard offences relating to being drunk or offensive. All these offences carry fines or tiny terms of imprisonment. So, why have the police instead dug through the list of common law crimes for the rarely (if ever) used offence of ‘public nuisance’, which carries a maximum of five years imprisonment? The decision to prosecute smacks of an attempt to teach the lad a lesson and obstruct his dealings with the media. And that raises the interesting question of the interaction of these provisions:

17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

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

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.

Victoria Police, of course, are a public authority. So, there seems to be an argument that bringing the charge of public nuisance scarcely seems to fit with the teen’s best interests and, depending on their motivation, might be arbitrary (at least if the teen was arrested.) While the House of Lords recently cast some doubt on whether charging decisions can limit rights, their reasoning (such as it was) may be of limited relevance to Victoria, where courts are exempted from the Charter. So, the burden of keeping discretionary criminal justice compatible with human rights falls to the police. For this reason, I’m also dubious that the mere availability of the charge under Victorian law provides the police with a defence under Charter s. 38(2).

And what about the charge of producing child pornography? Well, any film of one or more minors (or even apparent minors) involved in ’sex acts’ fits the definition of child pornography. 

child pornography means a film, photograph, publication or computer game that describes or depicts a person who is, or appears to be, a minor engaging in sexual activity or depicted in an indecent sexual manner or context

And, unless the teen is quite an artiste with his handicam, he can’t rely on the Commonwealth Classification Board to save the day with a PG rating. Alas, he’s part of a weird trend (and a disturbing statutory quirk) in Victorian prosecutions:

The right to release

The more I look into the law on parole and human rights, the clearer it becomes to me (until more than the current sentence from Hulls on this topic goes on the public record) that the concern of the parole boards about having the Charter applied to them is with these bits of Charter s. 21:

21(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

21(7) Any person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration or order regarding the lawfulness of his or her detention, and the court must- (a) make a decision without delay; and (b) order the release of the person if it finds that the detention is unlawful.

Now, just reading these provisions on their own without reference to ECHR caselaw, these two provisions are about the start and continuation of deprivation of liberty. The requirements aren’t exactly mind-bending: deprivation of liberty must occur through lawful procedures and there must be a (court) procedure to test that the detention continues to be lawful.

These provisions make most sense when you consider the usual criminal process context of arrest: cops need a law to arrest someone and must swiftly bring a person before a court to test to lawfulness of that arrest. However, they can also apply in other contexts. Indeed, the ECHR equivalent to Charter s. 21(3) actually contains an exhaustive list of when someone can be deprived of liberty:

5.1 …No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

a. the lawful detention of a person after conviction by a competent court;

b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Now, as Article 5.1.a makes clear, one such situation is after a person has been convicted. Although neither Article 5.1 or Charter s. 21 uses the term, this is the sentence phase, when someone may be given a sentence of imprisonment and will be detained pursuant to that.

I would have thought, then, that the sole effect of Charter s. 21 on people serving a sentence of imprisonment is to require that the original sentence be done ‘in accordance with procedures, established by law’ and that prisoners have a right to ask a court to rule on whether their detention, at any moment, is in accordance with that original sentence. This would be satisfied by Victorian sentencing law and the right to habeas corpus (in Victoria known, less gloriously, as Order 57 of the civil procedure rules) (as well as other Victorian provisions allowing someone to challenge their sentence.)

But that’s where ECHR law on Article 5.4 mixes things up.

The price of powerful parole boards

Yesterday’s decision by Justice Harper to grant leave to Robin Fletcher (referred to in the newspapers as the paedophile witch) for an early review of his extended supervision order demonstrates that increasing the power of parole boards is a tricky thing. In Secretary, Department of Justice v Fletcher [2008] VSC 217, the provision that Harper J had to apply was this one from the SSOMA Act:

21(3) The offender, with the leave of the court, may apply to the court at any time for it to undertake a review of an extended supervision order made by it.

The Department argued that the test for whether leave should be granted should be the same one that the Court of Appeal uses to determine whether to grant leave to appeal against a sentence. That’s a surprising analogy for the Department to draw, given that Attorney-General’s view, put to Parliament in the Statement of Compatibility to the recent bill extending the monitoring scheme that ESOs are neither punishment nor penalties. In any event, Harper J rejected it:

It is not an analogy that attracts me. A person who is made subject to an extended supervision order is no longer a prisoner under sentence. A person in Mr Fletcher’s position should in my opinion be given leave to apply for a review of such an order if the court is satisfied that new facts or circumstances, justifying such a review, have arisen since the order was made.

It is a little disappointing that the Charter’s interpretation mandate wasn’t referred to in reaching this conclusion.While I don’t think that parole decisions trigger the Charter s. 21 protections for deprivation of liberty, it’s pretty clear that an ESO does. The English cases on the ECHR equivalent to Charter s. 21(7), described last post, arguably could suggest that defendants should have a ready chance to challenge ESOs in a court to test the continuing need for the order, something that would surely have favoured Harper J’s approach.

Anyway, what is interesting is Harper J’s reasons for granting Flectcher a review. He didn’t seem to be moved by alleged factual changes of circumstance about Fletcher’s condition or the expertise that led to the original ESO. Rather, it was legal changes that interested him, notably the amendment to the SSOMA in 2006 (itself the result of a challenge by Flectcher) to permit the Adult Parole Board to order that Fletcher live within the permiter of his former prison:

I regard the giving to Mr Fletcher of a direction, unlawful when made, that he reside within Ararat Prison, as a new fact and circumstance. Had it been known, when the original hearing before Gillard J took place in May 2006, that this direction was proposed, his Honour’s attitude to the Secretary’s application would have been different. So much can be said with confidence, because his Honour subsequently held that the direction was unlawful. And, for the reasons to which I have already referred, Mr Fletcher’s attitude would also have been different.

I acknowledge that the giving of the direction was a new fact or circumstance partly because it was, when given, beyond power; since then, Parliament has amended the legislation, so that what was once unlawful is now within power. To that extent, the “new” fact or circumstance has been removed.

In my opinion, however, the point – that the direction to reside on land within the perimeter of Ararat Prison was a fact or circumstance which might have affected the outcome of the Secretary’s application before Gillard J – remains good. Any judge, it seems to me, would be bound – when considering whether he or she was satisfied to the “high degree of probability” required by s.11(1) of the Act – by the reasoning of the High Court in Briginshaw v Briginshaw….

Now, there’s two ways this has a wider significance than Fletcher’s case.

The Charter vs parole boards

I’m weeks late on a very big Victorian development. (Proves I’m not keeping tabs on the Public Accounts and Estimates Committee, the Herald Sun or ACTHRA!) As I blogged about six months ago, three public authorities who would otherwise be bound by the Charter’s conduct mandate have been exempted from it by regulation, due to expire at the end of this year. The state’s three parole boards, we were told, needed time to ensure that their operations would comply with the conduct mandate, despite it having been enacted almost eighteen months before it commenced. Now it seems that thirty months (and maybe forever) will not be enough.

Here’s what Attorney-General Rob Hulls said in evidence earlier this month before the PAEC:

Mr BARBER — The adult parole board, Youth Residential Board and Youth Parole Board have all be exempted from the human rights charter by regulation and the human rights commission said that they were unaware of the rationale for that and that such provisions were extremely significant. I believe your response was that this was done for a period of one year in order to allow for a review of the impact of the charter on those bodies’ work and also to consider the resources that they would require to comply. Can you let us know what those resources are, the progress of the review and whether it will still be for only one year

Mr HULLS — It is a good question. I actually met with the heads of the Youth Parole Board and adult parole board only last week about this very matter, because they are seeking an extension of the exemption. They have put their case to me in relation to that and I have not made a decision yet about whether to go down that path or not. They have suggested that natural justice is not afforded to people seeking parole and they have to make decisions, often very quickly, in the interests of the broader community. They are aware that no right under the charter is absolute, but they are indeed seeking a further period of exemption.

This is the first time that the parole boards’ concerns (and the government’s response) have appeared on the record. Unfortunately, these are slim pickings and they leave me worried about the quality of legal analysis that’s occurring behind the scenes.

Section 69(2) of the Corrections Act 1986 says that the Adult Parole Board ‘is not bound by the rules of natural justice’ and the parole boards appear to be worried that Charter s. 38(1) will nevertheless impose just such a requirement. They are presumably also worried that Charter s. 38(2) won’t let them off a hook, as the Corrections Act doesn’t tell the Board not to follow the rules of natural justice and instead just leaves procedure up to them. Hulls’s reference to how ‘no right under the charter is absolute’ is a reference to Charter s. 7(2), I guess, but my (admittedly controversial) view is that Charter s. 7(2) doesn’t restrict the requirements of the conduct mandate (though it may prevent a declaration of inconsistent interpretation about s. 69(2)).

So, I’m with the argument so far. But what Charter rights are the parole boards concerned about?

The rights of gambling lords, child-beaters and rapists

…or, to put it another way, the rights of property owners, parents and people who have paid their debt to society.

What was in that SARC report whose tabling attracted Parliamentary debate? The Committee made significant comments on three bills:

First, the Gambling Regulation Amendment (Licensing) Bill 2008, which sets up some of the recently announced new arrangements for the licensing of gambling in Victoria. One provision of the bill provides ‘for the avoidance of doubt’ that certain past gaming licence holders and their agents and associates have neither an entitlement or a legitimate expectation to a future wagering, betting or keno licence. The Committee asked the Minister for Gaming whether or not any of the affected people are human beings (as opposed to companies), which would engage Charter s. 20.

Second, the Children’s Legislation Amendment BIll 2008, which makes a variety of changes to how young kids are cared for by paid or organised carers. One provision of the bill enhances an existing ban on corporal punishment and ‘discipline which is unreasonable in all the circumstances’. The Committee agreed with a UK House of Lords decision which held that a ban on corporal punishment is compatible with parents’ rights to freedom of religion (including beliefs about discipline.) However, it asked the Minister for Children and Early Childhood Development what ‘discipline which is unreasonable in all the circumstances’ means and how carers are meant to know what it means.

Third, the Justice Legislation Amendment BIll 2008, which (amongst other things) extends the regime for (so-called) extended supervision orders to cover more offenders. The Committee, noting that such orders put enormous powers to curtail rights in the hands of the Adult Parole Board, which in turn is exempt from most regulation including Charter s. 38(1), asked the Minister for Corrections why the Board was exempt and referred the compatibility of the widening of such a body’s powers with the Charter to Parliament for its consideration. As well, the Committee, noting that existing offenders were captured by the extensions, observed that the New Zealand Court of Appeal held in 2006 that a very similar scheme amounted to punishment for the purposes of the rights against double jeopardy and retrospective penalties, and referred that issue of compatibility to Parliament as well. (This issue is a contender for the first attempt to get a court to make a declaration of inconsistent interpretation.) Finally, the Committee criticised the Statement of Compatibility for, amongst other things, failing to bring the New Zealand decision to Parliament’s attention.

What about the Police Integrity BIll, the focus of this week’s trouble?

No Canada: The EM vs Liberty and Security

Charter s.21(1) is a gem amongst the Charter’s human rights:

(1) Every person has the right to liberty and security.

Unlike so many of the Charter’s rights, it isn’t weighed down by caveats (like arbitrariness, unlawfulness, reasonableness or responsibilities) that are common in the ICCPR. I’ve argued elsewhere that the Charter’s drafters did a poor job in removing all such language from the ICCPR’s rights when translating them into Victorian legislation. There is no need for these caveats, because the Charter, unlike the ICCPR, has a general limitations provision in Charter s. 7(2).

In Canada, the first jurisdiction to use a general limitations provision, the equivalent to Charter s. 21(1) is s7 of its Charter:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The words ‘liberty’ and ’security’ have each been given broad interpretations by the Supreme Court of Canada. ‘Liberty’ has been held to cover a person’s ’personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance’  and security to cover ‘both the physical and psychological integrity of the individual’. These definitions has relied upon in cases on hot-button culture wars topics like abortion and medical marihuana.

However, these bold consequences may not flow through to Victorians via Charter s.21(1). Why? Because of the Explanatory Memorandum to Charter s21(1) (emphasis added):

Sub-clause (1) establishes a person’s right to liberty and security….This clause is modelled on articles 9 and 11 of the Covenant and embodies safeguards that are well recognised in international law. It is a right concerned primarily with physical liberty! It is intended to operate in a different manner to article [sic] 7 of the Canadian Charter of Rights and Freedoms which guarantees the right to “life, liberty and security of the person” in that the Victorian provision is not intended to extend to such matters as a right to bodily integrity, personal autonomy or a right to access medical procedures!!!

I’ll go out on a limb (albeit a fairly sturdy one) and say that this would have the be the single most rights-reducing EM clause ever. Here are ten reasons why it should be ignored: