Conference Q&A

One of the best things about human rights laws is the conferences. While I (and everyone I know) doesn’t much like conferences themselves – the locations are another matter – because the papers tend to be narrow, poorly presented and disconnected from one another, human rights conferences tend to produce interesting, connected and (better) presented papers. Friday’s annual Protecting Human Rights Conference was no exception. As the final speaker for the event, I was a bit too distracted to listen carefully to every speech, so I’m looking forward to the papers appearing online (apparently at the end of this week.) Prof. Johannes Chan’s paper, in particular, looks to be a superb and much needed summary of HK human rights cases.

But what did keep me alert was the Q&A’s, where new and interesting things often emerge. Here’s my summary and takes on some of those:

Charter s. 35: Carolyn Evans, in her summary of this-year-in-the-Charter, called for the repeal of Charter s. 35, the Charter’s provision requiring notice to the A-G and VEOHRC of Charter issues in the higher courts, arguing that it hampered making Charter arguments. Pamela Tate and another questioner queried her on that call, citing her comment that the MHRB decisions to date involved not-especially-helpful legal arguments and the supposed inconsistency there. Tate revealed that Charter s. 35 was requested by the courts, who wanted better legal arguments on the Charter. She also suggested that Charter s.35 notices don’t cause delays, citing the weekend turnaround on Sabet’s request for a stay of the HPRB’s decision to suspend him. Evans, in response, mooted making Charter s. 35 transitional but ultimately opted for immediate abolition, referring to the potential for Charter s. 35 to yield government-backed, rather than neutral, legal analysis.

I say: too bloody right. No-one should put the Charter in a corner. Or, to put it more fully (including some of what I said in my own talk):

• The problems of Charter s. 35 in practice can’t be measured by what happens after notices are issued, but rather by the potential for litigants to choose not to issue notices (and therefore make arguments) at all. Sabet, who initiated a Charter-specific claim in the Supreme Court, is hardly a case in point; rather, the relevant concern is a lawyer who thinks up a Charter claim just before or in a trial and is deterred by the threat of a costs order due to the Supreme Court’s appalling Practice Note No. 3 of 2008. More generally, even a short procedural requirement prevents the Charter from being brought up instinctively, regularly and urgently. Why should it be any harder to raise the Charter than any other statute?
• The supposed necessity of legal advice from the A-G & VEOHRC is an insult, not only to other lawyers, but also to the County and Supreme Courts. Why would the State’s most senior judges have so much difficulty coming to terms with a forty-nine section statute that’s been around for over two years now and is the subject of a couple of excellent texts, including an annotation? And what’s the case for treating the Charter differently to other legislation (remembering that the Charter is the weakest statute in Victoria?) The fact that the judiciary asked for Charter s. 35 strikes me as another worrying sign that Victoria’s courts are no enthusiasts for the Charter, and in particular its ubiquitous use in our courtrooms. It makes me wonder: did they ask for Charter s. 4(1)(j) too?
• It’s also worth noting that Evans’s comments about the need for legal advice related to proceedings in the MHRB, not the SC or the CC which are where Charter s. 35 applies.
• The risk of the supposedly helpful legal advice really being the government line in disguise, alluded to by Evans, is all too real. A number of speakers pointed out the lack of funding for VEOHRC to make submissions. Instead, as I argued in my paper, the interventions have all been from the A-G and are all against rights claims. See below.

Charter s. 32:

s78B v the Charter

At yesterday’s launch of Evans & Evans’s new charter book, Chris Maxwell (President of the Victoria Court of Appeal) briefly discussed the Underbelly case, including how the Charter issues fizzled. He referred to one issue that wasn’t mentioned in either the news coverage or the judgment: that the Court of Appeal made it clear (on the day of the hearing) that, if Channel Nine wished to rely on the Charter, then s78B notices would have to be sent out and the case held over for a few weeks. Given that Nine’s entire objective in that appeal was to squeeze in some of the early (and totally uncontroversial) episodes of Underbelly in before Evangeline Goussis’s trial (weirdly, we can name him now!), this of course forced Nine to drop the Charter argument completely. No Charter for you!

And here I was thinking that I couldn’t be more appalled by the Court of Appeal’s behaviour in that case.

So, what was going on here (legally?) Section 78B (of the Judiciary Act 1903) is the Commonwealth Constitution’s equivalent to Charter s. 34. It requires a notice to be sent to every Australian Attorney-General (all nine of them) whenever any court proceeding ‘involves a matter arising under the Constitution or its interpretation’. The point of this section is to ensure that any court decision about the Constitution is informed by the viewpoints and legal skills of the nation’s Attorneys-General.  Such decisions aren’t all that common and s78B helps to keep it that way, by making it hard for any litigant to slip in a constitutional argument into any litigation. Doing so brings costs, delay and, if the argument has any merit (which isn’t all that often), a bunch of senior counsel into the courtroom, who may well ask for the entire case to be shipped off to Canberra. Most litigants, when asked to issue s78B notices, respond (as Channel Nine did) by narrowing their legal arguments to avoid the constitutional issue.

But s78B can also be abused. Here’s how to do it:

A question of law arises about ‘a question of law arises’

Kortel v Mirik & Mirik [2008] VSC 103, discussed last post, nearly became Victoria’s Marbury v Madison because of these provisions of the Charter:

35 (1) A party to a proceeding must give notice in the prescribed form to the
Attorney-General and the Commission if-

(a) in the case of a Supreme Court or County Court proceeding, a question
of law arises that relates to the application of this Charter or a
question arises with respect to the interpretation of a statutory
provision in accordance with this Charter; or

40. (1) The Commission may intervene in, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter.

It all began in 2005 when twin brothers Mirik and Mirik violently assaulted Refik Kortel. The injuries could scarcely have been more extreme, both physically and psychologically.  In 2007, the Miriks pled guilty to these offences and were sentenced by Bell J to lengthy prison terms (and the Court of Appeal raised one of those sentences on appeal.) This year, Kortel applied for an order for compensation, payable by his attackers. When the hearing came before Bell J, Kortel had counsel while both Miriks were unrepresented.

Justice Bell, like Bongiorno J a few weeks later, was gravely concerned about the ability of the defendants to participate in the hearing in the circumstances. Unlike Bongiorno, he didn’t try to deal with this through the use of a common law stay power. Unlike Bongiorno, he leapt at the chance to apply the Charter and, especially, solve the s6(2)(b) mystery. Unlike Bongiorno, he was willing to delay the proceedings by issuing s35(1) notices. However, like Bongiorno, his actions got a result: the next time Mirik and Mirik were in court, they had lawyers funded by legal aid. Problem solved? Not quite, because VHREOC and the Attorney-General both turned up in court. And VEOHRC was determined to argue the 6(2)(b) point.

I’m alarmed by VEOHRC’s conduct here.