The New Charter

R v Momcilovic [2010] VSCA 50 certainly merits a second break from my break from blogging. The most obvious reason is that it announces the very likely (but not certain) prospect of the first ever declaration of inconsistent interpretation under Charter s. 36:

THE COURT OF APPEAL DECLARES THAT:

Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) cannot be interpreted consistently with the presumption of innocence under section 25(1) of the Charter.

This’ll be (and indeed is) an Australian first, but let’s not get too carried away. It will not be the first time an Australian law has been officially declared:

• to be incompatible  with human rights. See here.
• to be incompatible with international human rights. See here.
• to be incompatible with international human rights under a domestic law. See here.
• by a court, to be incompatible with international human rights under a domestic law. See here.
• by a court authorised to make such a declaration , to be incompatible with international human rights under a domestic law. See here.

Rather, it will be the first time that a court authorised to do so declares that an Australian law is incompatible with international human rights under a domestic non-equal-opportunity law. And, even then, such a declaration was nearly made over a decade ago (and it would have been much more consequential than this one.) Regardless, the court’s finding that DPCSA s5, Victoria’s unique and nasty ‘deemed possession’ provision, is incompatible with the right to be presumed innocent is both a statement of the bleeding obvious and a relief. Indeed, with the shameful exception of the Attorney-General, it’s also a finding that everyone agrees with, including (as it turns out) the prosecution.

But what is much more surprising is the VCA’s finding that this shame could not be interpreted away. The real importance of Momcilovic isn’t its findings about either Charter s. 25(1) or DPCSA s5, but instead its complete reworking of two of the Charter’s core provisions: Charter s. 7(2) (on reasonable limits) and Charter s. 32 (on interpretation.) Until now, the vast majority of decisions, writings and advocacy about the Charter have argued furiously that these two provisions act in combination so that  all Victorian statutory provisions are liable to be manipulated by their readers to bring them into line with a test of reasonableness founded on international standards of rationality, proportionality and liberal democratic values. In other words, it’s been claimed that, since it came into operation on 1/1/8, the Charter has injected a legally obligatory human rights culture into the entire field of Victorian regulation. Doctrinal positions (and PR blather) to this effect about the Charter’s operative provisions have been repeatedly advocated in particular by the Attorney-General’s lawyers, VEOHRC and the human rights sector, and such an operation of the Charter has also been assumed by critics of such statutes. It’s a reading of the Charter that I have repeatedly criticised in this blog.

And now, unless there’s a (successful) appeal or revisiting of the issue, this approach is dead. The new approach is set out at [35]:

(1) Section 32(1) does not create a ‘special’ rule of interpretation, but rather forms part of the body of interpretive rules to be applied at the outset, in ascertaining the meaning of the provision in question.

(2) Accordingly, when it is contended that a statutory provision infringes a Charter right, the correct methodology is as follows:

Step 1: Ascertain the meaning of the relevant provision by applying s 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act 1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply s 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The key rejections of the alternative approach are at [101]-[102]:

In the view we have taken, s 32(1) has the same status as (for example) s 35(a) of the Interpretation of Legislation Act 1984 (Vic). It is a statutory directive, obliging courts (and tribunals) to carry out their task of statutory interpretation in a particular way. It is part of the body of rules governing the interpretive task. Compliance with the s 32(1) obligation means exploring all ‘possible’ interpretations of the provision(s) in question, and adopting that interpretation which least infringes Charter rights. What is ‘possible’ is determined by the existing framework of interpretive rules, including of course the presumption against interference with rights.

and at [105]-[107]:

[O]ur conclusion that s 32(1) is not a ‘special’ rule of interpretation reinforces our view that justification becomes relevant only after the meaning of the challenged provision has been established… It is that the emphatic obligation which s 32(1) imposes – to interpret statutory provisions so far as possible compatibly with Charter rights – is directed at the promotion and protection of those rights as enacted in the Charter. We reject the possibility that Parliament is to be taken to have intended that s 32(1) was only to operate where necessary to avoid what would otherwise be an unjustified infringement of a right.

In Momcilovic, Court of Appeal President (and ex leader of Liberty Victoria) Chris Maxwell, David Ashley (a commercial lawyer who recently emerged as the only Victorian judge honest enough to admit that Peter Dupas can never get a fair trial in Victoria) and (ex-academic and law reform commisioner) Marcia Neave held that not only do Charter ss. 7(2) and 32 make no dramatic changes to Victoria’s legal system, but they don’t have anything to do with eachother.  Charter s. 32, far from being an outsourcing of Parliament’s lawmaking role to anyone who reads a statute, is simply a tool for assisting those readers in understanding Parliament’s words and intent. And Charter s. 7(2), far from being a legally enforced new culture that envelops anyone who is affected by a Victorian statute, is instead just a tool for assessing (and not re-interpreting) laws by the same two bodies that are responsible for them in the first place: Parliament and the courts.

Why reject the broader conception of the Charter? Because:

It is an interpretation of the [Charter] depending on an implication which is formed on a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language to be quoted, nor referable to any recognized principle…., and which, when started, is rebuttable by an intention of exclusion equally not referable to any language of the instrument or acknowledged… principle, but arrived at by the Court on the opinions of Judges as to hopes and expectations respecting vague external conditions. This method of interpretation cannot, we think, provide any secure foundation for… State action, and must inevitably lead—and in fact has already led—to divergencies and inconsistencies more and more pronounced as the decisions accumulate…. But we conceive that [overseas] authorities, however illustrious the tribunals may be, are not a secure basis on which to build fundamentally with respect to our own [Charter]. While in secondary and subsidiary matters they may, and sometimes do, afford considerable light and assistance, they cannot, for reasons we are about to state, be recognized as standards whereby to measure the respective rights of [Victorians] and [Victoria] under the [Charter].

No, that isn’t from Momcilovic, but a much earlier landmark case about another major statute that Australia received from overseas.

Momcilovic is the Charter’s Engineer’s case. What the Victorian Court of Appeal has held in Momcilovic is exactly what this blog has being saying all along: that the Charter is just a statute and, in particular, a bunch of (often) disparate provisions. Neither its pompous title, nor its illustrious forebears, nor its often opaque drafting change that. The  Charter’s meaning is not to be read subject to the murky political imperatives that led to its development, drafting and enactment. It isn’t to be read in light of the views or hopes of its founding mums and dads, no matter what they say. Its provisions don’t combine mystically to achieve greater goals. Not unless those provisions themselves say so. Courts should just read the provisions the way they read any statute: by reading the words, pondering their context and looking through the pertinent extrinsic materials.

Hopefully,the pre-Momcilovic era of the Charter, partially chronicled in all its hideous detail on this blog, will soon be as forgotten as the pre-Engineers era of the Constitution. See ya later Ghaidan, and RJE, and Kracke, and FRED. The Charter is dead. Long live the Charter (perhaps.)

So, what does this all mean for the Charter’s various stakeholders? I’ll discuss them in turn.

The Charter vs Parliament

One of the core principles of the Charter is that it doesn’t affect Parliament’s powers. Those powers are preserved by the limited nature of the Charter’s operative provisions (limited to interpretation, and excluding the non-administrative capacities of parliament from the oblgiations mandate.) They are also made clear in three express savings provisions:

29 A failure to comply with section 28 in relation to any Bill that becomes an Act does not affect the validity, operation or enforcement of that Act or of any other statutory provision.

32(3) This section does not affect the validity of- (a) an Act or provision of an Act that is incompatible with a human right; or (b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made.

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

But could the Charter still be raised in court in an action against Parliament?

Petra Butler recently gave a talk at Melbourne Law School about just such an action in New Zealand. The recently booted-out Labour government caused a lot of controversy by passing a new Electoral Finance Act late last year. (See the pictured front-page editorial in the NZ Herald, featuring a gagged man, which was later the subject of a successful press council complaint.) An article in the latest issue of the Public Law Review outlines a number of concerns about the statute, notably its quite extreme limits on third-party advertising. Indeed, incoming PM Key has earlier announced that repealing the Act will be his first move upon his election. For NZBoRA groupies, a further controversy is how the NZ Attorney-General Michael Cullen fulfilled the following obligation under the NZBoRA:

7 Where any Bill is introduced into the House of Representatives, the Attorney-General shall,— (a) In the case of a Government Bill, on the introduction of that Bill; or (b) In any other case, as soon as practicable after the introduction of the Bill,— bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

Cullent didn’t report. In accordance with the usual (and excellent) NZ practice, the legal advice he received on the issue is published, complete with the names of the advising lawyers: Val Sim, Crown Counsel and (a name now familiar to Charter groupies) Joanna Davidson, as peer reviewer. The advice described the freedom of expression views as ‘finely balanced’ but deferred to Parliament’s ‘wide margin of appreciation’. Andrew Geddis, in the PLR, casts this ‘vet’ as ‘overly deferential to the government’s policy preferences’. 

Somewhat astonishingly, an action was commenced in New Zealand’s High Court seeking a declaration that the Attorney-General was in breach of s7 of NZBoRA. The action was commenced before the Bill was passed, but the High Court declined the request for urgency. By the time the action was heard, the Bill had passed, but declarations were sought on the basis that a declaration should be made about the past breach and that s7 required the Attorney-General to recommend the re-introduction of the bill accompanied by an appropriate s7 statement. The Attorney-General responded with a request to strike out the application as an interference with parliament and as an attempt to seek an unavailable declaration remedy on a moot point. In Boscawen v Attorney-General [2008] NZHC 949, a judge of the High Court agreed to the striking out. Denis Clifford’s key finding was that:

when the Attorney-General responds to his duty under s 7 of NZBORA and determines ­ as the case may be ­ that there are or there are not inconsistencies between a bill and the rights and freedoms contained in NZBORA, and therefore determines whether to draw or not draw such inconsistencies to the attention of the House, the Attorney-General performs a function which falls within the proceedings of Parliament. I think, therefore, that questions of the privilege, whether described in terms of non-interference in the internal proceedings of Parliament, or as questions of Article 9 [of the Bill of Rights 1689] privilege …  mean that judicial review is not available.

According to Butler, the striking out has been appealed to the NZCA, but it would be quite a surprise if it reaches a different conclusion.

The general principles cited in Boscawen are also part of Victorian law. So, would they apply to the equivalent provision of the Charter?:

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

(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

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

As is well known, Charter s. 28 differs from NZBoRA s7. In NZ, statements must only be made if the A-G thinks a bill is incompatible. By contrast, the Charter requires a statement for every bill. This strikes me as a potentially significant difference, because the making of a statement, as opposed to its content, is not a question of legal judgment about the human rights content of a bill.

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):

Bongiorno’s challenge

Last Friday’s Stateline brought some major Charter news:

As part of its election commitment, the Victorian Government introduced a Charter of Human Rights. Now Supreme Court judge Justice Bernard Bongiorno has questioned whether aspects of coercive powers legislation are in conflict with the Charter. He’s called for written submissions before deciding on the matter and has halted the granting of coercive orders to police in cases where the subject of the order has already been charged.

Um, ‘election commitment’? The Bracks Government was elected to its second term in 2002 and its third term in November 2006. Hulls’s Justice Statement announcing the Charter consultation was in May 2004 and the Charter was on the statute books in July 2006. George Williams has said that the short time frame was designed to fit in with ‘the electoral cycle’. So, let’s not engage in any revisionism, OK?

Anyway, assuming that Stateline can be trusted on the rest of its story, this is, at last, a significant Charter challenge to some significant Victorian legislation that has significant legs. Interesting that the Charter issue appears to have been raised by Bongiorno himself. That’d be the third time he’s done that (see here and here.) The challenge appears to be to the Major Crime (Investigative Powers) Act 2004, which was passed in the midst of the gangland war. (Don’t mention the war!) Its provisions allow for a ‘coercive powers order’ in the following situation:

5(1) Subject to subsection (2), a member of the police force may apply to the Supreme Court for a coercive powers order if the member suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.

8 The Supreme Court may make a coercive powers order if satisfied-

(a) that there are reasonable grounds for the suspicion founding the application for the order; and

(b) that it is in the public interest to make the order, having regard to- (i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and (ii) the impact of the use of coercive powers on the rights of members of the community.

The order allows the issuing of a ‘witness summons’ to anyone over 16. That’s an offer you can’t refuse:

37(1) A person served, as prescribed by this Act, with a witness summons to appear as a witness at an examination before the Chief Examiner must not, without reasonable excuse- (a) fail to attend as required by the summons; or (b) fail to attend from day to day unless excused, or released from further attendance, by the Chief Examiner.

(2) A person appearing as a witness before the Chief Examiner must not- (a) at an examination, refuse or fail to answer a question that he or she is required to answer by the Chief Examiner; or (b) without reasonable excuse, refuse or fail to produce a document or other thing that he or she was required to produce by the witness summons.

(3) A person who contravenes subsection (1) or (2) is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).

39(1) A person is not excused from answering a question or giving information at an examination, or from producing a document or other thing at an examination or in accordance with a witness summons, on the ground that the answer to the question, the information, or the production of the document or other thing, might tend to incriminate the person or make the person liable to a penalty.

So, what’s the problem? Well, it probably isn’t the Charter right to freedom of expression, because that it is glossed by a significant exception:

15(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary-…  (b) for the protection of national security, public order, public health or public morality.

Rather, the likely ground of challenge is the Charter’s two rights affording a privilege against self-incrimination:

Hinch’s challenge

A prediction of mine (and kinda-sorta another) came true today. The Age reveals:

Broadcaster Derryn Hinch plans to launch a Supreme Court challenge against five charges of breaching suppression orders by naming two pedophiles. Hinch’s barrister Peter Faris, QC, told a Melbourne court today his client would challenge the validity of the suppression orders made in the Supreme Court. Mr Faris said Hinch would claim the law under which he had been charged was in breach of Victoria’s charter of human rights and responsibilities. Hinch would also claim it had removed his right of freedom of speech, the freedom of the press and to the system for open courts.

Hinch was charged after he named the sex offenders at a public rally in June and named them in an article on his website. Police later charged Hinch with having published or cause to be published material which identified an offender in contravention of suppression orders made in 2007 and this year. Mr Faris described as “somewhat farcical” that the Department of Justice would now have to apply to the County Court to have the suppression orders varied so the case against Hinch can proceed. Prosecutor Lisa Mendicino told Melbourne Magistrates Court that the Director of Public Prosecutions was not a party to the making of the suppression orders and therefore could not vary them. Hinch said outside court he believed that what he had done was “morally right” and that the court would decide whether he was legally right or wrong. Magistrate Sarah Dawes adjourned the charges until November 20 to allow Hinch’s lawyers to be supplied with the police brief.

And here’s the Hun:

BROADCASTER Derryn Hinch says he was morally right to publicly name pedophiles despite facing criminal charges for it. Hinch today faced court for allegedly breaching court orders banning the names of convicted sex offenders being released to the public. His lawyer Peter Faris QC told Melbourne Magistrates’ Court his client would take his fight against the five charges to the Supreme Court. The charges allege breaches of County Court suppression orders protecting the identities of two pedophiles that have been released from prison. He is accused of publishing their names on his website http://www.hinch.net and announcing their identities at a protest rally in June this year. Mr Faris told the court he would be launching a Supreme Court challenge to the validity of the orders his client is charged with breaching, saying they were not made in the public interest. He said the charges were a breach of the Human Rights Charter as they removed his client’s right to free speech and the openness of the courts. Hinch was supported in court by wife Chanel and crime victims’ advocate Noel McNamara. Outside court Hinch said he felt what he had done was morally right but it was now up to the courts to decide if it was right or wrong. Magistrate Sarah Dawes adjourned the case to November.

The relevant law that Hinch will challenge is this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005:

42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order- (a) that any evidence given in the proceeding; or (b) that the content of any report or other document put before the court in the proceeding; or (c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.

(2) An order under this section may be made on the application of a party or on the court’s own initiative.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty: 500 penalty units in the case of a body corporate; 120 penalty units or imprisonment for 1 year or both in any other case.

Back on 1 June 2008, the Sunday Age described me as saying that a judge was likely to rule that provisions of the SSOMA are incompatible with the Charter. I didn’t exactly say that, but I certainly did think a challenge was on the cards:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem.

Alas, I was speaking of orders to confine sex offenders and challenges by said offenders – such a challenge may well be on-foot, not that there’s any publicity about it – rather than challenges by people who don’t like sex offenders and want to tell the world about whether or not such orders have been made (not to mention the identity of the offenders.)

However, two days later, when the story of Hinch’s naming of two offenders broke – and before he was even charged – I predicted that he might make a challenge too, on free speech grounds.

Charter s. 36 vs abortion

Victoria’s first major public Charter rights debate proceeds apace, with earlier threats of hospital closures being augmented by threats of mass retirement and immigration of doctors in response to clause 8(1)(b) of the Abortion Law Reform Bill 2008:

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

But the Weekend Australian tells of a different sort of threat:

It is understood Catholic Health Australia, which has already threatened to withdraw medical services from its 15 hospitals in Victoria, will challenge the legal validity of the most contentious provision in the abortion bill – forcing doctors with a conscientious objection to abortion to refer patients elsewhere for a termination. It is believed the upper house MPs who will vote on the bill, after it passed comfortably through the lower house a fortnight ago, will be warned against supporting the proposed legislation because the legal status of the bill is uncertain. The nub of Catholic Health Australia’s argument is that mandating doctors to act a certain way in their medical practice is in breach of the Victorian Charter of Human Rights. The charter is a set of human rights, freedoms and responsibilities protected by law. This would be the first challenge to the charter since it was introduced in 2006.

I assume that this ‘challenge’ to the legislation is actually a reference to the procedure on Charter s. 36(2):

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

Contrary to the suggestion in the newspaper article, such a challenge could not be to the ‘legal validity’ of the law (once enacted):

36(5) A declaration of inconsistent interpretation does not- (a) affect in any way the validity, operation or enforcement of the statutory provision in respect of which the declaration was made

Instead, the sole ‘legal effect’ of such a declaration is to require Morand to make a statement to the Parliament:

37 Within 6 months after receiving a declaration of inconsistent interpretation, the Minister administering the statutory provision in respect of which the declaration was made must- (a) prepare a written response to the declaration; and (b) cause a copy of the declaration and of his or her response to it to be- (i) laid before each House of Parliament; and (ii) published in the Government Gazette.

The benefits (if any) of a declaration are extra-legal, including a possible political win and (perhaps) a plea in mitigation for anyone facing professional censure or other action for breaching the referral rule.

But that assumes that such a declaration will be given. Putting aside the substantive issue of whether or not clause 8(1)(b) is compatible with Charter s. 14, any ‘challenge’ using s36(2) faces some significant procedural obstacles.

The alienable right to drive

Losalini Rainima has just completed a nine-month stint in a NSW prison for driving without a valid licence. This surprising punishment is the result of her of her refusal to accept conditional bail or, following her lengthy remand in custody, a good behaviour bond, or, following her sentence, the conditions of parole. Her refusal in each case was, I assume, for the same reason as her refusal to accept NSW’s driving licence regime. As she told her magistrate:

God has given me a right that is given to me, it’s within me. … I have a right of passage. I have a right of movement. All living things are given graces; the birds fly, the fish swim, the kangaroo hops, and I’ve been given the graces to drive.

She speaks, of course, of a right that Victorians have under the Charter, albeit given to them not by God but by the Victorian parliament:

12 Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Appeals to divine law typically fall on deaf ears in courts, but her appeal was accompanied by s78B notices. There, she had the assistance of members of UPMART.

What is UPMART? Curiously, those members told Hidden J that UPMART wasn’t an acronym – perhaps it’s a discount chain? – and declined to say what the name meant. However, the arguments put in their s78B notice were curiously similar to those on the website of a Victorian organisation also called UPMART. Its site offers over twenty phrases spelt out with the letters U, P, M, A, R, T including ‘Unity Pulse of Marriage Assented by Rite of the Trinity’, ‘Universal People Measuring Abundance in Real Time’ (a variation of Time and Relative Dimensions in Space?) and, at the top of the list, ‘United People Movement Against Road Tolls’. They also offer quite a bargain: a driver’s licence that is immune to both fines and tolls and lasts for life. The catch: it’s not offered by VicRoads, but rather the common law. Indeed, the site contains this disclaimer:

PLEASE NOTE the initiatives of UPMART are based on the opinions of some of the members of UPMART, who are not legally qualified, but whose opinions are based on their knowledge of common law, constitutional law, natural law and bible codified common law. The initiative of common law vehicle registration is the most controversial of the initiatives and is presently not recognised by the laws of the states and Territories, and persons participating in this initiative may be exposed to prosecution under the laws of the state or Territory. It is alleged that this initiative is in conflict with State Statutes. Likewise other initiatives also challenge State and Territory laws.

UPMART’s lawyers may well find some surprising comfort, in relation to their views on the inalienability of the common law from state legislation, in the view of Victoria’s Solicitor-General, Pamela Tate, which has protected the common law from being affected by one state statute, the Charter.

Alas, UPMART’s support did not win the day for Ms Rainima. In Rainima v Magistrate Freund [2008] NSWSC 944, Hidden J held:

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other. For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not. If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.

But that’s nasty NSW. Why doesn’t UPMART bring a similar action in Victoria, where there is a distinction between parliamentary sovereignty and human rights?:

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

There are a couple of catches though:

The French Court

It was worth electing Rudd after all! I’m smiling today about the appointment of Robert French as the next Chief Justice of Australia. Unless he leaves early, we’ll have nine years of the French Court, which will hopefully be enough to get us over ten years of the Gleeson Court. It’ll be the French Court who will decide some key lingering questions about the Charter, not to mention potentially hear some regular appeals from the Victorian Court of Appeal about its operation.

So, why am I pleased? Mainly, because of my lack of enthusiasm for two of the other judges who’ve been mooted for the job: the CJs of NSW and Victoria. For starters, I’d like some geographic diversity. After all,  would someone like Dyson Heydon have ever been appointed if it wasn’t for Howard’s Sydneyphilia? But it’s also about the incumbents themselves. I’ve never been all that impressed by Jim Spigelman, perhaps because I don’t much like his judgment writing style; I’m thinking two hundred paragraphs of quotes from very precedents, followed by: “For the above reasons, I allow/dismiss the appeal.” But it’s especially because of my shock at an incident back in 2001 when Bob Carr, incensed at the sentences being handed out in rape cases, demanded that Spigs come to talk to him about it… and Spigs went!

As for Marilyn Warren, she’s put her name to two lousy Charter judgments so far this year, both involving giving short shrift to freedom of expression (see here and here), and one involving some very dubious process too (see here.) While I hold onto the hope that these were abberations (or just specific to that particular right), for now, I’m quite relieved that Gillard’s rumoured push for her to be chief has not occurred. That being said, I’m a little torn on gender diversity grounds and certainly hope a woman will replace Kirby (albeit also alarmed at the prospect of three Susans on the court.) So, French is basically the devil I don’t know, as is his court (given its lack of criminal law jurisdiction.) But the Gleeson court (full of state judges and commercial federal judges) leaves me enthusiastic for someone from  a different background, given his association with native title law. 

But, more importantly from a Charter perspective, his published speeches have promising indications on his willingness to engage with Victoria’s new statute in a positive way: he’s clearly been following the new human rights statutes and the debate about them closely, especially in his native WA. While he meets James Allan’s test of not coming out in support of such statutes, I don’t think Professor Allan will be very pleased with his approach, for example relying on George Williams’s analysis of the pros and cons. More importantly, his speeches have touched on two of the big political and constitutional issues about Victoria’s Charter:

An annoying argument

More bodginess! I’m more than a little baffled by a piece by Williams & McGarrity in Wednesday’s SMH. They argue that Evans v State of NSW [2008] FCFCA 130 shows the need for a federal charter of rights:

The protesters have won this round. Next time they are not likely to be so fortunate. The Federal Court decision illuminates the fragile nature of freedom of speech in Australia. The right deserves better protection than the legal presumption that Parliament does not intend to breach the right unless it sets this out in clear terms. It is long past time that such an important freedom was safeguarded in a national charter of human rights.

Now, there seem to be three things wrong with this argument:

First, we already have ‘better’ protection for free speech in Australia than the common law presumption against infringing rights: the Constitution’s freedom of political communication. True, it wasn’t tested in this case, because the Federal Court felt that they had interpreted away all of Evans’s and Pike’s problems. But, if interpretation wasn’t an option, there’s surely a good chance that the Constitutional remedy would have been available. Aside from the requirement of proving that their communication was ‘political’ – and, really, is there any doubt about that given the desire of Evans and Pike to talk about hotbed issues like same-sex marriage and state funding of religious events? – this Constitutional protection raises issues that are pretty damn similar to those under Charter s. 15(2). The big difference: the Constitution would actually invalidate the regs if they (or their head statute) couldn’t be read down. 

And that’s the second point:

The right to Hinch

Maybe a sex offender won’t be the first person to challenge Victoria’s Serious Sex Offender Monitoring Act. Here’s the alternative:

Victoria Police will investigate whether outspoken broadcaster Derryn Hinch should be charged for revealing the names of two protected sex offenders. The Office of Police Prosecutions (OPP) is referring the matter to police after Hinch named the two men during a rally on the steps of the Victorian parliament on Sunday.

If Hinch is charged, he will simultaneously bring himself within the terms of this provision of the SSOMA:

42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order…(c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty:…120 penalty units or imprisonment for 1 year…

and these Charter provisions:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter…. that question may be referred to the Supreme Court…

36(1) This section applies if-  (a) in a Supreme 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 (b) the Supreme Court has had a question referred to it under section 33…

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

This development raises two questions, one mildly interesting, one more interesting.

The mildly interesting question is whether a court will make the declaration. Hinch could argue both freedom of expression and protection of children, but you’d have to say that he has the odds stacked against him when it comes to a Charter s7(2) analysis, given the threat of vigilantism posed by… the sort of people who listen the Hinch. Perhaps, there’ll be a narrow interpretation of the words ‘public interest’ in the SSOMA. Perhaps.

The more interesting question is whether a court will, as a matter of discretion,l refuse to even consider making a declaration because of Hinch’s apparent agenda of deliberately breaching the law so that he can be prosecuted under it.

A not so fine line

Sigh. Now, here’s a bold call:

New sex offender laws run counter to rights charter

Melissa Fyfe June 1, 2008

PARLIAMENT has passed a law dealing with sex offenders that is likely to be inconsistent with the Charter of Human Rights and Responsibilities, according to a legal expert.

Wow. Who would make such a courageous claim?:

Melbourne Law School Associate Professor Jeremy Gans, who advises a parliamentary committee on the new human rights charter, told The Sunday Age that a judge was likely to find the law, passed last week, inconsistent with the charter. It would be the first such law to fall outside the new charter.

Did I say that? Alas, no. The article quotes me accurately further down:

Mr Gans said offenders were likely to challenge such an order under the charter and a judge was likely to agree that it posed a problem. The key concern was the issue of double punishment and that the law is retrospective. Victorians, under the charter, have a right not to be punished twice. The State Government took the view that extra monitoring was not punishment, but a court in New Zealand, where a human rights charter also exists, held that monitoring regimes were indeed punishment, Mr Gans said.

That’s a big difference. Like the difference between saying someone is likely to be charged with a crime and saying they are likely to be convicted.

For the record, I think a challenge is likely because the Charter argument is open to be made (what with the New Zealand decision) and, unlike many laws, this one isn’t just going to sit on the books unused. It’s going to be applied to some people who will have every interest in attacking it every way they can.

But will the challenge succeed?

The scope of the interpretation mandate

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

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

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

and its declaration power:

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

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

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

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

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

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

Act means an Act passed by the Parliament of Victoria…

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

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

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

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

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

The other right to smell

Earlier, I outlined the current Australian law of sniffer dogs. There’s some protection against being touched by sniffer dogs, but the bottom line is that the common law doesn’t protect anyone from the passive senses: sight, hearing, smell. So, everyone – you, me, police, dogs – has the right to look at, listen to or smell anyone (or anything) that can be seen, heard or smelled. The flipside of this right to be snoopy is that we don’t have a right to privacy. In particular, the rights to look, listen and smell come at the cost of losing our right to be visible, audible and… smelly. 

Of course, in Victoria, we now have some protection for this other right to smell, in Charter s. 13(a):

A person has the right-

(a) not to have his or her privacy… unlawfully or arbitrarily interfered with…

This right goes beyond the common law right against trespass. Subject to the confines of the operational provisions of the Charter, all Victorians have the very right to privacy that the common law has long denied us.  More precisely, we have two more limited rights: against unlawful interferences with privacy and against arbitrary interferences with privacy. Or, to be still more precise, it is now unlawful for public authorities (including Victoria Police) to do either of these intrusions (or get their dogs to them) unless another law makes it reasonable for them to do so. Any such law must itself be a reasonable limit on the right to privacy or it risks being the subject of a judicial declaration. This new right to be smelly of course comes at the expense of the police’s (and their dogs’) old right to smell (i.e. to sniff.)

So, do Canada’s two recent Supreme Court judgments shed light on when the police can set their dogs to sniff us or our belongings? At first glance, Canada seems to be a poor comparative jurisdiction on this question, because its Charter has no privacy right. Rather, s.8 of their Charter has the following right, borrowed from the Americans:

Everyone has the right to be secure against unreasonable search or seizure.

But it turns out this right is exactly the same as our Charter s.13(a)! The Canadian Supreme Court has long held that a ‘search’ occurs whenever the state does something that intrudes on someone’s reasonable expectation of privacy (ah ha!) And, such a search will be ‘unreasonable’ when it isn’t authorised by law (ah ha!) and isn’t founded on non-arbitrary (ah ha!) grounds. Hooray! So, what do the Canadians say about sniffer dogs?

There were two cases decided last week. One involved the cops being invited to a school, where they set their sniffer dog (Chief) on a pile of backpacks left in a school gym; Chief discovered magic mushrooms and cannabis in one kid’s bag. The other involved the cops conducting surveillance at a bus station, looking for suspicious characters and then offering them the choice of either a consensual search or a dog sniff. One guy exhibited funny ‘eye contact’ and reacted to this choice by getting antsy. Chevy the dog was brought in and (tellingly) sat down. The guy’s bag proved to be full of cocaine. Good Chevy! Or was he?

Alas, the SCC was totally poliarised in both cases, each producing a 4-2-2-1 split. Oh god.

Justice Heydon’s 2020 submission

Before the 2020 summit, there was some controversy about the role of former judges in the governance stream. But what about current judges? For all the usual boring reasons, sitting judges have to keep well away from public discussions about law reforms, especially ones that might raise constitutional problems. That may have proved frustrating for Justice Heydon.

Today, the High Court made a terse contribution to a major current debate in sentencing law: whether and how to distinguish between different drugs when it comes to sentencing possessors and traffickers. Back in the olden days, courts used to routinely distinguish between soft and hard drugs (later adding a ‘middle’ category.) Hard drugs (e.g. heroin) merited a higher sentence, due to their harmfulness, than soft drugs (e.g. cannabis.) But the kids these days are using new drugs that make these distinctions complex. In particular, where does ‘ecstasy’ (as they call it) fit in? In the 1990s, judges mulled over whether the ubiquitous party drug was all that much worse than dope. But, this decade, with nice kids dying and gangland wars and all that, judges came to see ecstasy as ‘emerging as a very significant community problem.’

Two years ago, a five-judge bench of the Victorian Court of Appeal responded to all this confusion by ruling that the Victorian drug statute – where the maximum sentences are all about quantities of drugs and their commercial nature – barred courts from considering the general harmfulness of a particular drug at all. Last year, it applied the same reasoning to the Commonwealth’s drug statute, dismissing an ecstasy possessor’s complaint that his sentencing judge had declared that “In general terms the courts equate ecstasy, in terms of sentencing, as being similar to heroin.” The High Court, worried about an apparent variation amongst the states in how they sentence federal drug offenders, took the case. Today, a majority ruled that judges neither could nor should try to make a comparison between different sorts of drug. However, they left unresolved the question of whether sentencing judges can still take account of distinguishing features of a particular drug as part of their (sigh) ‘instinctive synthesis.’

Justice Heydon wrote a separate judgment and took a different, nastier line:

The right to adult incest

Today brings this rather surprising news story from South Australia:

A South Australian woman has given birth to her father’s daughter after the couple had sex. John and Jenny Deaves reunited 30 years after Mr Deaves separated from Jenny’s mother. Jenny was 31 and just two weeks after meeting, father and daughter had sex. “John and I are in this relationship as consenting adults,” Mrs Deaves told the Nine Network’s 60 Minutes tonight. “We are just asking for a little bit of respect and understanding.” Their nine-month-old daughter Celeste, shown on TV, appears fit and healthy.

The couple appear to have confessed to a crime under South Australia’s Criminal Law Consolidation Act:

72—Incest

Any persons who, being related, either as parent and child or as brother and sister, have sexual intercourse with each other shall be guilty of incest and liable to be imprisoned for a term not exceeding seven years.

Indeed, they were actually convicted of this crime this year and were sentenced to a good behaviour bond.

But there’s a major problem here: Australia’s toughest human rights law, the Human Rights (Sexual Conduct) Act 1994 (Cth), which says:

4 (1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

A new problem Charter section?

Justice Bongiorno’s discussion of the Charter in the course of his ruling about remand conditions in Melbourne’s terrorism trial didn’t just involve its transitional provisions. Indeed, the judge nominated an alternative provision as highly problematic:

[A]ny attempt at reliance on the Charter would necessarily require compliance with s 35(1)(a), which concerns the giving of notice to the Attorney-General and the Equal Opportunity and Human Rights Commission of a question of law relating to the application of the Charter. Compliance with this provision would, of necessity, involve delay – perhaps considerable delay – which in the context of an application such as this would be at least inconvenient and perhaps even intolerable.

Section 35 of the Charter contains no severance provision, nor does it contain any urgency exception such as are found in s 78B of the Judiciary Act 1903 (C’th). These are major impediments to the smooth operation of the Charter which need the urgent attention of the Legislature. The section needs to preserve a residual discretion in the judge to relieve a party from giving notice where to do so would unduly disrupt or delay a proceeding or for other good reason. This is, for obvious reasons, particularly important in criminal proceedings. Without such a power there is a real danger that the notice provisions of the Charter will be used to delay or even disrupt the orderly conduct of criminal trials.

Wow! Is the Charter unworkable? Well, only if you read Charter s.35 in a quite bizarre way.

A High Court declaration of inconsistent interpretation?

The Charter gets a mention again in a new case, Ferguson v Walkley [2008] VSC 7, which had to decide whether ‘fuck off you dog cunts’ are ‘insulting words’; saying such things to a person ‘in or near a public place’ is a criminal offence under s. 17(1)(c) of the Summary Offences Act 1966. Interestingly, Harper J dealt with the potential incompatibility of s. 17(1)(c) with the Charter’s right to freedom of expression by reference to the High Court’s decision in Coleman v Power [2004] HCA 39 on a similar provision of the Queensland Vagrancy Act:

By a majority of six (Gleeson CJ and Gummow, Kirby, Hayne, Callinan and Heydon JJ) to one (McHugh J), the High Court held that s.7(1)(d) of the Queensland legislation was valid: it was, so the majority held, reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution. It doubtless follows that the equivalent provision in the Summary Offences Act can, in the words of s.7(2) of the Charter of Human Rights and Responsibilities, “be demonstrably justified in a free and democratic society based on human dignity, equality and freedom … taking into account all relevant factors”.

I’ll put aside the fascinating question of whether or not there is a direct relationship between the High Court’s constitutional freedom of political communication jurisprudence and the Charter’s s. 15(2) & 7(2). Let’s assume there is. What follows for s.17(1)(c) of the Summary Offences Act 1966?

Declarations: Anti-matter or just dark matter?

A slight lightening of a constitutional cloud over the Charter (and its Canberra cousin.) The cloud concerns the possibility that the Charter’s declaration power – allowing a court to declare that a Victorian statute is inconsistent with human rights, kickstarting the much vaunted rights dialogue – isn’t a ‘matter’, which means it can’t be part of federal judicial power. (Don’t know what ‘federal judicial power’ is? Well, that’d be my fault, according to High Court Justice Bill Gummow, who thinks that law schools should teach ludicruously complex (and simply ludicruous) constitutional technicalities to all law students, just so he can banter about them with his lucky associates from the get-go.)

So, whassamatter? In 1921, the Commonwealth Parliament, sick of trying to guess in advance how the High Court will interpret the Constitution, told the Court to rule on the constitutionality of legislation before anyone applied it. The horrified Court frantically leafed through the Constitution and noticed this legalese buried in Chapter 3:

76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter– (i.) Arising under this Constitution, or involving its interpretation: (ii.) Arising under any laws made by the Parliament: (iii.) Of Admiralty and maritime jurisdiction: (iv.) Relating to the same subject-matter claimed under the laws of different States.

The judges seized on the word ‘matter’ and held that it meant that the Court was forbidden on ruling on things that didn’t legally matter. Otherwise,the delicate separation of powers will collapse (just like in Canada, where its Supreme Court routinely gives advisory opinions and wild dogs roam the streets.)

Why does this matter?

New year’s resolutions

Last night’s firework display marked the moment when the Charter of Human Rights and Responsibilities Act 2006 (Vic) (a.k.a. the Charter) became fully operational. Most of the Charter commenced with last year’s fireworks, but the commencement of Divisions 3 and 4 was delayed for a year, supposedly to allow courts and public authorities to ready themselves.

These two divisions contain two new year’s resolutions that the Victorian parliament has made on behalf of the other branches of the government:

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.

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.

Divisions 3 and 4 also contain two provisions about what happens if these resolutions can’t be or weren’t followed:

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

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

A lot of this blog will be about these four provisions, which I refer to as the interpretation mandate, the conduct mandate, the declaration power and the remedies power. (Better shorthand name suggestions appreciated!)