Giuseppe De Simone redux

[EDIT: Here, at last, the post VCAT suppressed, originally written over a month ago. Who knows why the suppression was ordered or lifted? The case is now available online.]

He’s baaaack! Giuseppe De Simone, readers will recall, scored a brief Charter mention on Halloween in his succesful appeal against his conviction for biting a police officer in the aftermath of a supermarket dispute involving an ice-cream he ate. But that isn’t the end of his business in Victoria’s judicial system or, for that matter, his significance for the Charter. In a recent VCAT judgment, he had another bite of the Charter cherry. Actually, it was his third. And it raises one novel issue (involving Charter s. 33, the Supreme Court referral provision) and a host of familiar ones.

The context is a building contract dispute relating to the Seachange Retirement Village at Ocean Grove  (which, for those who don’t know, is quite close to Barwon Heads, which, for those who don’t know, is the real life location of Pearl Bay, which, for those who don’t know, lucky you.) The owners of the land have sued the builders for non-performance (after the Charter s. 49(2) cut-off date, it seems) and the builders have counterclaimed for misleading conduct. In the thick of things is De Simone, managing director of the owners. On 27th July 2006, two days after the Charter became law, he sent the builders, who said they needed evidence of financing for insurance purposes, a letter on an accountant’s letterhead that appeared to confirm financing. Alas, it seems, it didn’t, but was instead a letter about a subsidiary money matter. This led to De Simone being personally joined in the action. The recent VCAT case was De Simone’s attempt to stay that part of the action.

But, before we get there, there’s an earlier Charter angle. The original VCAT officer appointed to the case early last year was Senior Member Roger Young. Young fairly quickly started to have problems with De Simone, who, it turns out, ‘has studied law but has not been a legal practitioner’. The worst sort! De Simone represented himself (for the most part) in the various directions and interlocutory hearings that arose last year and he and Young obviously didn’t get along, with Young often shutting down De Simone’s contributions (and pointedly suggesting he get a lawyer) and De Simone making applications for Young to step down due to apprehended bias (one of which was prompted by the ‘lawyer’ suggestion, which Young conceded was a lame joke.) In the end, it seems, Young just started to lose it, stopping De Simone from making relevant submissions, criticising De Simone for skipping a meeting that Young had excused him from and, most damningly, saying things like: ‘Gee whiz, I’m getting sick of you!’ (Surely likely to be the last non-ironic use of the term ‘gee whiz’ ever.) So, in the middle of this year, in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, VCAT’s (then) acting President Ian Ross exercised his powers to take over the case, citing apprehended bias, De Simone’s fair hearing right and Charter s. 24. The latter was a classic passing mention, with all the lameness and fuzziness that follows from it. Fortunately, Ross’s latest Charter judgment on the case is more substantial.

De Simone’s case for having the civil claim against him stayed arises because the builders not only sued in VCAT but also referred De Simone’s alleged financing letter shenanigans to the Geelong police. De Simone has not yet been charged (either at the time of his application, in July, or the time of the ruling, in late November), but it was accepted by all parties in the hearing that the probability of  a charge of obtaining financial advantage by deception was ‘high’, although the time-line is not known. De Simone’s application therefore raised the same issue as Trevor Flugge’s (successful) stay application: whether the civil proceedings should be stayed to avoid prejudicing the defence of the future criminal proceedings and, in particular, whether the unpopular 1982 judgment of McMahon v Gould, which generally favoured the rights of civil litigants, should be applied. However, whereas Flugge’s action faced some significant barriers to raising the Charter (due to the federal context and the  Charter’s lack of direct application to common law rules), De Simone’s action lacks those barriers: VCAT’s jurisdiction is both Victorian and statutory.

The initial (and most novel) issue in Seachange Mangement Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629 is whether the questions pose by De Simone’s Charter challenge should be resolved by VCAT or by the Supreme Court. De Simone requested the later. Here’s the relevant Charter provision:

33(1) If, in a proceeding before a court or tribunal, 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, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not- (a) make a determination to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

This provision is the result of a recommendation by the Consultation Committee. (Interestingly, and pertinently, the Committee’s draft also required a referral to the Court of Appeal instead of the Supreme Court if the referral was from a VCAT President or Vice-President, but that equitable treatment of VCAT and the Supreme Court was excised by the meddlers. )  The Committee explained that sometimes lower courts ‘need guidance on an interpretative question’ and that the Committee ’sees value’ in having the Supreme Court decide them (following notice to the A-G and VEORHC.) So, it’s another plank in the Committee’s ‘don’t let lesser lawyers or officers stuff up our precious Charter; that’s a job for the Attorney-General and the Supreme Court’ philosophy. However, unlike the risible Charter s. 35, this provision is ameliorated by the sensible constraints of requiring both a party request and a determination by the first instance officer, before the higher authorities stick their collective nose in.

God knows why De Simone made his application (relating to both the application of Charter s. 24 directly to VCAT and its application to the procedural provisions in the VCAT Act), though you’d have to wonder whether he just wanted to delay the civil claim against him under Charter. s33(2)(a), which would probably be as good as getting a stay. But the interesting question is when and on what basis such an application should be granted under Charter. s. 33(1)(b). Neither the Consultation Committee’s report nor the EM given even the slightest hint of when a question ‘is appropriate for determination by the Supreme Court’ [sic - or the Court of Appeal.] Here’s Ross’s take:

I am not persuaded that it is appropriate to refer either of these questions to the Supreme Court pursuant to s 38(1) [sic]. The issues raised by the questions were fully ventilated in the proceedings as was the application of the relevant principles to the facts of this matter. In my view the most expeditious course is to determine the application. Any party aggrieved by the decision may exercise their appeal rights and the issues sought to be determined by the referral application may be determined in that context.

Well, I’m not persuaded by this. Surely, the major issue under Charter s. 33(1(b) is whether or not the question is important enough to require authoritative determination, both for the benefit of the immediate matter and for other similar proceedings. The application of McMahon v Gould in VCAT matters would seem to fit the bill, especially given the enormous criticism of that case, including recently in the Supreme Court. The major counter-factor would be the impact of Charter s. 33(2)(a) on the proceeding itself. Perhaps that’d be a weighty factor, but Ross doesn’t discuss whether or not the builders or owners would be prejudiced by delaying the counter-claim against De Simone (who, it must be remembered, was a late joinder to the original dispute between the two companies.) Of course, there’s a certain sense in Ross’s notion that the matter could be dealt with by the Supreme Court on appeal (and that there’s no reason why Ross can’t resolve the matter himself), but that sense seems to be at odds with the whole (elitist) point of Charter s. 33.

Personally, if the parties are willing – or if one party is keen and the other isn’t prejudiced overly –  it strikes me as a good thing to fast-track major issues to the Supreme Court and Court of Appeal, at least while so many crucial things about the Charter remain unresolved. For instance, what really is the point of Bell J’s current lengthy hearings about mental health, FOI and the definition of public authority, when those matters are all so contentious that they will inevitably have to be sorted out by the Court of Appeal (and perhaps the High Court)? If the parties are fine with doing things the slow way, then I have no objection. But otherwise? The quicker these major questions about how the Charter works are authoratitively resolved, the better, surely?

Anyhow, for better or for worse, Ross proceeded to resolve the matter himself. The good news is that he (and, it seems, the lawyers, and maybe even De Simone) were well versed in Charter Operative Provisions 101:

The Charter may impact on VCAT’s work in three ways:

• if VCAT is a ‘public authority’ s 38(1) provides that it would be unlawful for it to act incompatibly with human rights (subject to the exceptions in ss 338(2) and (4));
  
• all statutory provisions must be interpreted in a way that is compatible with human rights (s 32(1)); and
  
• the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter (s 6(2)(b)).

Oh, thank you Ian Ross! You can read! I’m not being facetious. You are streets ahead of most of your supposed betters on the Supreme Court: the Bongiornos, the Lasries, the Hollingworths, etc. You’ve even noticed the exceptions to the conduct mandate, including the most important one. Praise be. After nearly a year of blogging this stuff, I’m genuinely impressed. Which is actually tragic. Alas – readers of the blog know what’s coming! – Ross’s approach to the subtleties of the Charter didn’t quite match his precise grasp of the basics.

A very Charter Christmas

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

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

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

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

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

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

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

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

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

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

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

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.

The right to lawn bowls

Both of VCAT’s recent EOA exemption decisions were decided on the same day and both took the same inordinate time to appear on Austlii. Fortunately, the second decision, by VCAT Vice President Marilyn Harbison, has a much better Charter analysis, indicating, if nothing else, that there’s not a lot of equal protection against discrimination going on within VCAT.

The issue again is gender discrimination, this time in the world of elite lawn bowls. The origin of the exemption application was two earlier decisions of VCAT. The first ruled that lawn bowls, unlike Aussie Rules, didn’t fall within the EOA’s built-in exemption for gender discrimination in sport:

66(1) A person may exclude people of one sex or with a gender identity from participating in a competitive sporting activity in which the strength, stamina or physique of competitors is relevant.

This decision split the world of Victorian Lawn Bowls between those who thought that the decision had saved lawn bowls and those who thought it had killed it. Various small flurries were decided, with VCAT ruling that the Victorian Ladies Bowling Association had to admit men as members but that it was also allowed to run a one-off women’s event to honour a famous lady bowler. But then VCAT decided to grant a wholesale exemption to re-segregate the elite lawn bowls competitions, on the ground that Victoria’s mixed events didn’t mesh well with the largely segregated national and international lawn bowls world. In Royal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415, the issue was whether the exemption would be granted again and, of course, Harbison decided that it would.

In contrast to McKenzie’s ruling on the same day, Harbison considered both operative provisions. Her main discussion was of Charter s. 32, which is unsurprising because she was applying a wholly statutory power:

83(1) The Tribunal, by notice published in the Government Gazette, may grant an exemption- (a) from any of the provisions of this Act in relation to- (i) a person or class of people; or (ii) an activity or class of activities…

In response to the applicants’ argument that the Charter wasn’t relevant because this section is ‘clear on its face’, Harbison ruled:

In my view that argument has no merit. In deciding this application, I must consider the Charter because s32 clearly tells me that in interpreting all statutory provisions (and I take that to mean whether they are ambiguous or clearly expressed), I must make sure that I do so in a way that is compatible with human rights. If I am wrong, and the charter only needs to be considered in the event that legislation is not clear, then it is my view that the Charter must be considered in any event because s83 is not clear. It is silent as to the circumstances in which an exemption may be made, and so I must seek the assistance of the Charter in interpreting the section.

Yes indeedy! That’s exactly right. 

Now, onto the next issue: how does the Charter assist? On this point, Harbison herself had the assistance of VEOHRC, who (as always) couldn’t afford to show up, but at least was able to send a letter:

It has been the Commission’s view that the Charter does require a modified approach. The issue as the Commission sees it, for exemption applications, is the impact of s7 of the Charter upon the scope of the discretion vested in the Tribunal under s83 of the Equal Opportunity Act, in the light of the need to revisit its interpretation in accordance with s32 of the Charter. In brief, it is the Commission’s position that s7 of the Charter now defines the parameters of s83 of the Equal Opportunity Act. It follows that the test to apply when exercising that discretion is to ask whether the proposed exemption is or is not a reasonable limitation on the right to equality, using the framework of considerations enunciated in s7. If that analysis identifies that a proposed exemption is not a reasonable limitation on the right to equality then the Commission view is that it should not be granted.

That’s not bad either, although some might see it controversial because it clearly follows the Hansen approach, reading s83 down only to the extent demanded by Charter s. 7(2). While I’ve expressed some doubts about Hansen in some contexts, this context shows why Hansen is necessary, at least some of the time. Given that s83 basically authorises a departure from one of the Charter’s equality rights, it simply can’t be read as wholly compatible with those same rights. So, the only sensible re-interpretation that can occur is to read it as requiring no more than Charter s7(2) requires. (Query whether this reading is ‘consistent with the purpose’ of s83. But who knows what the hell its purpose is?) Harbison backed VEOHRC, but paraphrased its approach as follows:

Looked at in the light of s32 of the Charter, section 83 requires me to consider the purpose of the Equal Opportunity Act, and not make an exemption unless I am sure that the proposed exemption is justified by the purpose of the Equal Opportunity Act, and that the granting of the exemption is compatible with human rights.

That’s a bit vague (and seems to go further than Hansen would), but Harbison’s later analysis basically makes it clear that she will apply her discretion according to Charter s. 7(2). Moreover, she clearly takes the view that the Charter changes the approach to s83, at least in some cases:

This principle might, however, make a great deal of difference to the provision of an exemption where there is no obvious goal underpinning the exemption of redressing disadvantage or discrimination. It will assume particular importance in cases where the result of granting the exemption will be that the exemption will prevent a person from exercising his or her human rights without some public interest benefit from the exemption. It may, for instance, make a difference in cases such as re Boeing Australia Pty Ltd & Ors (2007) VCAT 532.

Oooh. That reads to me as if she knows full well that McKenzie completely buggered up BAE. Harbison later notes that ‘Deputy President McKenzie did not consider herself bound by the Charter in deciding BAE’. ‘[C]onsider’, hey? 

Issue #3: what rights exactly are limited by s83 in general and the proposed exemption in particular?:

Section 7 of the Charter defines what human rights are to be applied in accordance with s32. It is not open to me to make up my own definition as to what is a human right. I must decide whether one or more of the human rights which appear in s7 are engaged by the proposed grant of the exemption. The rights in the Charter which appear to me to be engaged in this analysis are the right set out in section 8(2) to enjoy human rights without discrimination and the right set out in 8 (3) to the equal protection of the law without discrimination. The word “discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in the Equal Opportunity Act 1995. Sex is one of the attributes in the Equal Opportunity Act on the basis of which discrimination is prohibited. In the context of this case, the right that I identify therefore is the right of every person to be able to play the sport of lawn bowls without being discriminated against by reason of his or her sex. This right is engaged by the proposed exemption because if I were to grant the exemption, a person of one gender would not be able to exercise his or her right to play bowls in relation to the events limited to the opposite gender for which the exemption is sought.

Snicker.

The right to co-education

The trickle of VCAT decisions into Austlii has brought two new Charter decisions, both on the recurrent issue of exemptions to the Equal Opportunity Act. One received some press a few weeks back, with news that the Preshil, the Margaret Lyttle Memorial School, a private school in the middle of Melbourne’s private school belt, would be allowed to continue to discriminate against boys. It’s not at all clear to me why the judgment has taken three weeks to emerge. One consequence, though, is that its crummy Charter analysis hasn’t gotten the contemporaneous criticism it deserves.

Preshil’s application was for exemptions from the EOA’s bans on discrimination against boys in education, the provision of services, requesting information and advertising. Of course, such discrimination is familiar in private schools, due to this provision:

38. An educational authority that operates an educational institution or program wholly or mainly for students of a particular sex, race, religious belief, age or age group … may exclude- (a) people who are not of the particular sex, race, religious belief, age or age group…

But Preshil doesn’t qualify for this exemption, because isn’t a girl’s school, but rather a co-educational one. However, it is – or at least was – at risk of becoming more of a boys school, until it received an exemption from VCAT in 2005:

The material before me and Ms Millane’s affidavit sets out and compares the situation of gender balance at the school in May 2005 and August 2008. In 2005, the ratio of boys to girls was two to one or more at preparatory level, in grades 3, 4 and 5; in grade 6 (where there was one girl and 16 boys) and in years 7 and 10. In August 2008, boys and girls were at a ratio of or exceeding two to one in grade 6 and year 7, with ratios below but close to that figure in its age three nursery. In the other classes, the ratios are much closer and the gender balance, while not equal, does not show swamping. Preshil’s current waiting list has twenty boys and eight girls on it. In the last three years, the percentage of girls attending the school has increased, and the percentage of boys has declined slightly. The school attributes this improving gender balance to the operation of the exemption.

The exemption in particular seeks to offer scholarships and the like exclusively to girls and, in the classes with a 2-1 ratio, to stop taking boys altogether.

In Preshil, The Margaret Lyttle Memorial School (Anti-Discrimination Exemption) [2008] VCAT 241, VCAT Deputy President Cate McKenzie, who gave Preshil its exemption in 2005, gave it again in 2008:

There is possible discrimination here, but there is a significant public interest in granting the exemption. It promotes a coeducational choice at a school with a unique educational philosophy and environment. It prevents girls at the school being swamped in those classes where boys are in very great numbers, and so tries to ensure that boys and girls in all classes receive the same coeducational experience

‘Possible’ discrimination? What the hell is ‘possible’ about this? As a result of this exemption, a number of kids are going to miss out on Preshil’s unique educational philosophy simply because they have penises. Others will miss out on financial support for the same reason. It is discrimination (albeit discrimination that is routinely practiced by single sex schools.) 

McKenzie, readers might recall, both wrongly dodged and completely botched the Charter in granting a race discrimination  exemption to BAE Systems Australia a couple of months back. But, this time, she’s run out of (spurious) excuses and had to ‘apply’ the Charter:

I accept counsel’s submission that my conclusion is compatible with the Victorian Charter of Human Rights and Responsibilities. The school’s approach to coeducation is, in my view, consistent with a number rights in the Charter. For example, the school emphasises the individuality of the child and the freedom of thought, expression and belief. The exemption is aimed at fostering the school’s coeducational environment, and ensures that one sex is not disadvantaged relative to the other. To the extent that any human right in the Charter may be engaged, it is my view that the exemption represents a reasonable limit on that right in the terms set out in s7 of the Charter. The conditions to which the exemption is subject ensure that its operation is limited only to those situations where there is a substantial gender imbalance, and that it operates in the least restrictive way.

This is just gibberish. Where do I start?

Hulls’s Charter

Rob Hulls’s most important contribution to Victorian human rights law, after the Charter itself, is his promulgation,  on the last Friday before the last Christmas before the Charter came into full operation, of regulations exempting Victoria’s three parole boards from the definition of a public authority and, hence, from the Charter’s conduct mandate:

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

To my knowledge, the decision has only been mentioned three times by the government: (1) by VEOHRC in its annual report, where one of its few negative comments was the lack of transparency in the decision; (2) by Hulls at an estimates hearing, where he attributed it to concerns about the parole boards having to give natural justice, and (3) by the current chair of the Adult Parole Board in its annual report, where it applauded the decision as a ‘prudent and responsible step’. 

The exemption is due to expire in 15 days. Here’s what Hulls said in June about his decision as to whether or not to extend the exemption:

They will have to put to me not only a very strong argument as to why they should be further exempted for a period of time but also, if they were not exempted, what resources they believe they would require to fully adhere to the charter. It may not be just a question of resources; that is true. It may well be, on the decisions they make and the timeliness of those decisions that they are required to make when they are dealing with people’s liberty — they do not give reasons for their decisions, as you are probably aware — as they have initially put to me, that it is important that they continue to operate in that way. As judges they admit that in all likelihood they are denying people natural justice. But that has always been how the parole board operates and if you change that, and you put in place a whole range of appeal rights and they have to give voluminous reasons for decisions and the like, it would tie down the work of the parole boards and, in their view, they could well become unworkable. That is their argument. I want to see for myself and get a better feel for the way the boards operate and I will make a decision in due course. that this was done for a period.

And here’s what I said about that same decision:

Time for some hyperbole: when someone writes a history of the Charter a few decades from now, I think that Hull’s decision, whichever way it goes, will feature as a key decision on the path to the Charter’s ultimate fate, whatever that is.

The relevant Charter provision is this one:

46(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Charter to be prescribed or necessary to be prescribed to give effect to this Charter.

(2) Without limiting subsection (1), the Governor in Council may make regulations for or with respect to- (a) prescribing entities to be public authorities for the purposes of this Charter; and (b) prescribing entities not to be public authorities for the purposes of this Charter;…

Arguably, though, Hulls’s decision to promulgate the regulations or not is itself subject to the very conduct mandate that Hulls can exempt any public authority (himself included, presumably) from.

Today, a full four days earlier than I was expecting it, Rob Hulls committed to his choice:

Notice is hereby given under Section 17(2) of the Subordinate Legislation Act 1994 of the making of the following Statutory Rules: …

163. Statutory Rule: Charter of Human Rights and Responsibilities (Public Authorities) Interim Regulations 2008

Authorising Act: Charter of Human Rights and Responsibilities Act 2006

Date of making: 16 December 2008

And here’s his choice:

Charter s. 39 vs tenants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The end of DNA database expansion

Back in March, I referred to a DNA database case before the European Court of Human Rights as the human rights case of the decade, pitting the clearest principles against the clearest practicalities. The House of Lords had unanimously ruled in favour of the practicalities, with one of the Law Lords, Simon Brown, issuing a concurrence just to say:

My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

Yesterday,  the seventeen judges of the European Court’s Grand Chamber unanimously upheld that very challenge, ruling firmly in favour of principle. It’s a stunning development that will put both DNA databases and human rights law at a crossroads.

The applicants in S & Marper v UK [2008] ECHR 1581 were both residents of Sheffield. In early 2001, at the age of 11, LS was arrested on a charge of armed robbery. Two months later, Michael Marper was arrested on a charge of harassing his partner. On June 14th, both were cleared, S by acquittal, Marper by a notice of discontinuance after he reconciled with his partner. Both then asked for their fingerprints and DNA, taken on arrest, to be destroyed, but the police refused, saying they wanted to retain the information for use in future criminal investigations. The police’s plan was made possible by a 2001 change in UK law, following an unsuccessful attempt by two people linked to crimes after their DNA should have been destroyed to challenge their convictions. The new amendment to the Police and Criminal Evidence Act (PACE) allowed the permanent retention of fingerprint and DNA samples in most circumstances:

64(1A) Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution.

Subsection (3) required the destruction of DNA taken from people never suspected of an offence (e.g. bystanders, such as residents of a burgled house who DNA is taken to eliminate irrelevant crime scene samples.) So, PACE s64(1A)  allowed the retention of all suspect samples, even when the suspects were cleared. S & Marper’s challenge to the police’s decision under the Human Rights Act was dismissed, in turn,  by a trial judge, the Court of Appeal (in a 2-1 decision with Lord Sedley dissenting) and the House of Lords, before today’s stunning reversal by the ECtHR.

The European Court’s decision was based on the ECHR’s right to privacy:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argued that the only way that DNA can interfere with privacy is at the time of sampling (it wasn’t disputed that S & Marper were lawfully and, it seems, properly sampled) and at the time of matching to an unsolved crime (when the relevant privacy right is the unfortunate right to get away with such crimes undetected.) But the ECtHR has long held that the mere storage of data can amount to an interference with privacy, depending on its content and context.

So, is the storage of DNA and fingerprints an interference? The ECtHR held that this test was satisfied for biological material (because of the wealth of genetic information it contains), the tiny DNA profiles on databases (because they can still be used to show relatedness and ethnic origin) and (overturning an earlier ruling) fingerprints (because they are stored on a computer allowing precise identification in a variety of circumstances.) It’s a little funny that the ECtHR’s reasoning on the most significant and contentious data, DNA profiles, was tied to some relatively recent side-uses of DNA profiles: familial screening (used to trawl the database for ‘partial’ profile matches, yielding possible relatives of the source of a crime scene sample. This technique was notably used to catch the UK’s ’shoe rapist’, who was detetected after a partial match to his sister, who was sampled after arrest for drink driving), possibly infringing family life too, and ethnicity tests (most famously used to identify London’s gerontophile rapist as Carribean, mostly likely frm the lower Winward islands.) Would cutting out these techniques save the UK database? Probably not, because the ECtHR’s reasoning on fingerprints (which have no such side-applications was based solidly on its traditional identification use, including the utility for computer assisted identification. DNA profiles, being digital, rather than analogue, are much more suited to comptuer-assisted identification (and, indeed, that is by far their primary database use.) I don’t know why the Court didn’t apply the same reasoning for both profiles and fingerprints. Anyway, the finding that retention of any of these things in an identifable form on a crime detection database breached Article 8.1 was a no-brainer (although, alas, a number of UK Law Lords failed the test.)

The really hard question is Article 8.2, i.e. justification. There’s no doubt that s64(1A) exists ‘for the prevention of disorder or crime’ (although some see the potential other uses as a big point.) But is retention ‘in accordance with the law’ and ‘necessary in a democratic society’? The ECtHR had some concerns about the former, because one of the s64(1A)’s use restrictions – ‘the prevention of.. crime’ – is alarmingly vague (ableit tracking Article 8.2 precisely!) But the Court didn’t decide that point, instead focussing on necessity. The Court, while skeptical of statistics from the UK showing the number of crimes, notably murders and rapes, supposedly solved through database matching to profiles retained from cleared suspects, acknowledged that retention would contribute to crime prevention and detection. However:

The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed…; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Court’s conclusion was that ‘the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.’

So, that’s the judgment. But what’s really interesting are the implications:

Relationship ceremonies redux

Back in May, I mulled over how the Registrar of Births Deaths and Marriages would exercise its powers under this provision of the Relationships Act 2008:

27(1) The Registrar may enter into an arrangement for the provision of additional services in connection with the provision of services relating to the registration of a registrable relationship, including, but not limited to– (a) the provision of information in the form of a decorative certificate or other document; (b) the provision of information from records maintained under section 26 relating to the registered relationship.

The registry has applied an identical provision in the Births, Deaths and Marriages Registration Act 1996 to provide for decorative marriage certificates and for registry marriages in the Old Treasury Building. I wondered whether there’d also be decorative registration certificates and, more interestingly, state-run registration ceremonies:

Arguably, it has to. The steps of the argument are: (a) that Charter s. 8, in providing for recognition before the law, a right to enjoy human rights without discrimination and a right to equal protection of the law, provides a right for unmarried couples to get the same recognition of their relationship that is afforded to marriage couples; (b) that state-run ceremonies are a form of such recognition and that the fact that marriage requires ’solemnization’, whereas relationships don’t, is not a significant difference; (c) that the Registar is a ‘public authority‘ (not much doubt there: see s4(1)(b)); (d) that the Registrar is therefore obliged to provide the same ceremony to both marriages and relationships under Charter s.38(1) (the conduct mandate); and (e) that the Marriage Act does not make it reasonable for the Registrar to not to do so under Charter s. 38(2)…

On the latter point, the ACT Registrar-General now provides such a service in the form of a ‘commitment ceremony’, attended and ‘managed’ by a Deputy Registry-General for a fee of $275 and including a program of the ceremony that is every bit as lame moving as a a modern wedding:

I partner 1 take you partner 2 to be my partner for life,
I promise above all else to live in truth with you,
and to communicate fully and fearlessly
I give you my hand and my heart
as a sanctuary of warmth and peace
and pledge my love, devotion, faith and honour
as I join my life to yours.

It even allows for the exchange of rings or cups(?) and the interminable ‘readings’. ‘Appropriate Symbols and Music may also add to the sense of celebration (couple to supply music and equipment if music to be played throughout the program.)’ Oh god. Robert McCleland, despite his initial concern about ceremonies ‘mimicking’ marrages, has not vetoed the ACT Civil Parternships Act, indicating that he, at least, doesn’t think that such Registry ceremonies involve some sort of conflict with the Commonwealth’s straight-only marriage law. As near  I can tell, the ACT government does not provide a similar service for people who want to get married. [Can someone confirm this?]

Well, the long-awaited commencement day of the Victorian system arrived yesterday, bringing the news that the Victorian Registry now provides a ‘Commemorative Relationship Certificate’ for the bargain price of $39. (It’s not an official certificate that can be used to gain the sole legal benefit of the scheme, proof that you’re in a relationship for the purposes of Victorian statutes. For that, you need to fork out $25.80 for an official certificate.) See commemorative version above between ‘John James Citizen’, labourer and (ahem) “Sam Smith”, student, both living in Richmond but, it seems, in separate houses. Ah, those old-fashioned types! The commerative (but not official) registration certificate will have a space for the newly-regs to nominate when they ‘celebrated’ their relationship, as well as a separate entry for when they both agree that their relationship ‘began’. (Do married people get to make a similar nomination?)

The version shown above is the ‘eternity’ model. Eternity, that is, until one of you decides to lodge an ‘application to revoke a registered relationship‘, in which case your relationship will be deregistered 90 days later, unless you submit a withdrawal form. (Alternatively, one – or, if you’re straight, both – of you can just get married, in which case deregistration is automatic and mandatory.) Maybe such folks should opt for the ‘calligraphy’ model, which features watermark words like ‘love’ and ‘unity’. But, beware, the revocation form isn’t available yet. However, newly-registereds who already have cold feet can just withdraw their application to register, which isn’t finalised until 28 days after application (or longer if you get some details wrong!) Alas, you won’t get back your $180 registration payment! 

But will the Registry offer relationship registration ceremonies?

Positive obligations under the Charter

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

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

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

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

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

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

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

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

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

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

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

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

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

More on Bongiorno’s challenge

Further to this previous post, I’ve belatedly noticed that the Charter issue relating to the coercive questioning powers in the Major Crimes (Investigative Powers) Act 2004 is discussed in the Annual Report of the Special Investigations Monitor (SIM). Here’s the discussion:

During one application for a CPO in the period under review, His Honour Justice Bongiorno raised the possible conflict between s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006 (the Charter) and s. 39 of the MCIP Act. The application concerned a person who was already charged by police for the offences the subject of the application for the coercive powers order. His Honour expressed concern that Victoria Police sought to summon that person to attend for examination and therefore be compelled to testify against himself/herself or to confess guilt contrary to s. 25(2)(k) of the Charter. Accordingly, His Honour sought written submissions on the matter and adjourned the application for the coercive powers order until resolution of the potential conflict.

Subsequent to this application for a CPO before Justice Bongiorno, a further two applications for a CPO and an application for an extension of a current CPO were made before His Honour Justice Cummins. The two applications for a CPO were adjourned on the grounds that the same issue as that raised by Justice Bongiorno applied. In respect of the application for an extension of a current CPO, His Honour Justice Cummins imposed a condition in the following terms:

“Any person who has been charged with any offence linked to the organised crime offence – the subject of the CPO – will not be summoned to give evidence (at an examination) until resolution of the issue with respect to s. 25(2)(k) of the Charter of Human Rights and Responsibilities Act 2006.”

The Chief Examiner has advised the SIM that on the instructions of the Chief Commissioner of Police, written submissions, to which the Solicitor General has contributed, have now been compiled by the Victorian Government Solicitor’s Office and submitted to His Honour Justice Bongiorno for consideration. Important issues are involved which are yet to be determined by the Supreme Court.

This fits what I previously discussed. It’d be great to see those written submissions. I’ve never entirely understood why these things aren’t published somewhere. How likely is it that the Solicitor-General’s arguments are going to be full of confidential information? 

What is of particular interest is the news that Cummins J imposed a condition on an existing CPO barring its use in relation to charged defendants. Previously, I couldn’t see how a potential breach of the Charter required that this step was taken. But I hadn’t noticed this provision of the Major Crimes (Investigative Powers) Act 2004:

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.

It could be argued that the interpretation mandate now requires that s8(b)(ii) be interpreted to require the Supreme Court to refuse an order (or impose conditions on it) if to do otherwise would be to authorise a breach of Charter rights. On the other hand, though, there’s a question of whether or not this interpretation is tenable, given the balancing test between crime-control and due-process envisaged by s8(b) and the apparent purpose of the legislature to strike such a balance. Presumably, this issue could be resolved by some close attention to Charter s. 7(2).

Interestingly, the same SIM report discusses a court judgment, CR v Attorney-General [2007] VSC 263, about the limits of the Supreme Court’s power to impose conditions on a CPO:

9(1) A coercive powers order must state that the Supreme Court is satisfied of the matters referred to in section 8(a) and (b) having regard to the matters referred to in section 8(b)(i) and (ii).

(2) A coercive powers order must also specify-… (g) any conditions on the use of coercive powers under the order.

Some cheeky judges started imposing a condition that any witness summons be made by the court (rather than by an alternative provision allowing the Chief Examiner to make the summons.) The Chief Ex challenged this as overriding the legislation’s permission for him to do exactly that. But the court held that the rights component of s8(b) allows courts to override the legislation in that way:

The right to information

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

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

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

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

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

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

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

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

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

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

38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

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

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

The Charter in the suburbs

VEOHRC’s Charter report card, ‘First Steps Forward‘, revealed that many local councils – compellingly regarded as at the coalface of the practical implentation of the Charter, given their service delivery role – were yet to even start crawling during the Charter’s first year:

• The sector’s preparedness is particularly low in ensuring that the processes involved in developing local laws comply with the Charter and in raising awareness about the Charter within local communities.
  
• The failure of 25 local councils to respond to the Commission’s survey suggests a lack of engagement with the Charter by some councils that will need to be addressed by councils, peak bodies and state government in 2008.
  
• While recognising the difficulties faced by local councils in engaging fully with the Charter, the sector will need to take stronger action in 2008 to ensure the compatibility of local laws and policies with the Charter and to develop a culture of human rights in local government.

The City of Hobsons Bay didn’t feature on VEHORC’s list of exceptional councils that had taken strong Charter initiatives. However, the latest newletter from the HRLRC brings some good news about the Charter’s impact in the suburbs.

Planning issues involving proposed Islamic facilities are, alas, problematic in Australia. An application by the Quranic Society for rezoning and permission to build a large school in Cawdor attracted considerable media attention, in part because of the involvement of Fred Nile. Cambden Council’s May decision to reject the application, citing a slew of planning concerns, has passed this difficult issue on to NSW Planning and Environment Court. By contrast, an application for rezoning and approval to build a new mosque in Newport West’ Paisley Park has been less difficult. Apart from leafleting by the Australian Protectionist Party, the sailing has been smooth, with a positive report from an expert planning committee and a recent vote in its favour by the City of Hobsons Bay. Is the difference just in the merits of the two applications? Or is this a Sydney/Melbourne thing? Or has the Charter made a difference?

The Panel Report on the proposed Blenheim Road Mosque refers to the Charter prominently in its introduction:

We are conscious that the Charter of Human Rights and Responsibilities seeks to protect and promote certain human rights by placing obligations on all public authorities, including local councils, to act in a way that is compatible with human rights and to give proper consideration to relevant human rights when making decisions. Of particular relevance in this situation are the rights to freedom of religion including communal religious observance, and cultural rights….

We are also conscious that any limitations on the exercise of a human rights must be carefully considered and should be the least restrictive means available to achieve the intended purpose. Our consideration of both the Amendment and the Applicaiton recognises the human rights prooteced by the Chater of Human Rights and Responsibilities and takes into account the obligations placed on public authorities.

The Charter gets a further express mention in the discussion of the proposed rezoing of Paisley Park from Education to, in part, ‘Private sports grounds and ethnic community establishments’ (allowing the construction of a mosque) and, for the remainder, ‘Public Park and Recreation Zone’. In addressing the question of whether this rezoning is ’strategically jusified’, the Panel introduces the discussion by stating:

[T]he Charter of Human Rights and Responsibilities establishes an obligation to ensure that people can practice their religious beliefs, including communal reigious observance.

This is a pretty strong statement of the effect of the Charter! It depends on the interaction of two Charter provisions:

14(1) Every person has the right to freedom of thought, conscience, religion and belief, including-… (b) the freedom to demonstrate his or her religion or belief in worship, observance, practice and teaching, either individually or as part of a community, in public or in private.

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.

Remembering that ‘act’ is defined to include ‘failure to act’ and a ‘proposal to act’, there is a lot going for the Panel’s view that Councils are obliged to do what they can to allow local religious groups to worship (and teach) in a communal way. Presumably, that would extend to making planning decisions that faciliate buildings for that purpose, at least where existing buildings don’t serve local needs. That is the case here:

It is clear from submissions and inspections that the existing mosque serves an established religious community but is too small to meet their needs. Further, the converted warehouse and dwelling provide substandard facilities for worship. Some of the inadequacies include insufficient and impractical space, poor ablution arrangements, and the effective exclusion of women from worship at the mosque.

But what about the defences to the conduct mandate?

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.

Tribunals under the Charter

Thanks to Phil Lynch for sending me two old but previously unpublished Charter decisions by the Mental Health Review Board.

One, MHRB [2008] 08-133, is an early instance (from late February) of the unfortunate trend of decision-makers addressing a human rights issue solely in terms of Charter s. 7(2) and, inevitably, finding that the test is satisfied. The MHRB, noting its obligations under Charter s. 32 with regards to interpreting legislation, itself raised the concern that compelling a paranoid schizophrenic to undergo a fortnight injection (from a doctor she regarded, naturally, as persecuting her) was cruel, inhuman, degrading and non-consensual. But it concluded:

The Board’s view is that the severity and longevity of P’s illness (which it has found renders her incapable of giving (or refusing to give) informed consent to her treatment), together with the significant risks to her mental and physical health and significant social relationships, make it reasonable to limit P’s human rights in this instance.

I don’t doubt the MHRB’s sincerity here, but anyone who thinks that this is bland instance of self-assessment is a ‘human rights culture’ is kidding themselves. As I’ve argued repeatedly in this blog, Charter s. 7(2) is a tool for assessing laws, not conduct. The MHRB didn’t consider any of the terms of the Mental Health Act, so it wasn’t assessing laws. Instead, the relevant inquiry should have been whether the treating doctor or the MHRB was bound by the conduct mandate and, if so, whether it had a defence  under Charter s. 38(2).  In short, the relevant question for the MHRB is whether the obvious limitation of P’s rights was the only reasonable option under the governing law.

The other decision, MHRB [2008] 08-106, is dated 7 January 2008 (although the hearing that produced the reasons is dated 9 January 2008. Oops.) Either way, it beats Gray v DPP by a week or so as the first ever Charter judgment in the Charter’s fully active mode. And P, a man with a troubled combination of intellectual disability, mental health issues, substance abuse, anti-social behaviour and sexually transmitted diseases, beats Nick Corcoris as the first person to be denied the benefit of the Charter’s operative provisions. In this case, the Mental Health Legal Centre made a ‘Charter challenge’ against the use of injections on P, who is scared of them, again an obvious breach of his rghts against non-consensual medical treatment. The MHRB held:

[T]he Board has no power under the Charter to determine the compatibility of the Act, or any provisions of the Act, with the Charter, nor to declare particular decisions or actions to be in breach of specific Charter rights. Save for the s32 requirement in respect of the interpretation of laws, the Charter does not change the Board’s substantive decision-making role under the Act.

The Board’s point is basically that the Charter doesn’t contain any direct remedies for rights breaches and certainly doesn’t give the tribunal the power to give such a remedy. Indeed. But the Board’s analysis seems to downplay the differences the Charter can make:

• Interpretation: The Board acknowledges its new interpretative role, but then claims that it can’t determine the compatibility of the Mental Health Act with the Charter. It’swrong. Whenever the Board applies the MHA, it is obliged to think about its compatibility with the Charter and, if there is a problem, to re-interpret wherever possible. Charter s. 6(2)(b) gives all tribunals functions under Division 2 of Part 3, including interpretation. And Charter s. 3(2) defines functions to include powers and duties. So, Board, do your duty!

• Obligations of doctors: The Board makes this interesting claim:

[A]s a public authority, the Charter will require individual treating teams in area mental health services to take Charter rights into account when making… treatment decisions.

I don’t know enough about the legal and social basis of mental health services to know whether this claim is correct. Maybe mental health services are statutory bodies? If not, the argument has to be that they perform a public function on behalf of the State of Victoria. Not all doctors fit that description, but clearly some will. Anyway, if true, then doctors are not merely required to take rights ‘into account’ but to act compatibly with them, subject to the defences to Charter s. 38. The Board however says that that isn’t its problem:

Since its early days, the Board has taken the view that the specific type and mode of treatment provided to an involuntary patient is a matter of clinical judgment that should be determined by the treating team, in consultation with the patient, as part of the treatment planning process… In the Board’s view, the Charter has not altered that basic position, and the Board has no power to, nor should it, make treatment decisions in individual cases.

This might be good policy, but the Board hasn’t done the right analysis to conclude whether or not it is good law. If doctors are breaching their conduct mandate, then they are acting unlawfully. The question isn’t whether Boards should interfere with a clinical judgment, but whether they should test to see whether the treatment team is complying with the law. Arguably, legislation that doesn’t allow a tribunal to review whether or not behaviour is unlawful is itself incompatible with the Charter s. 7(2) test governing limitations on rights. So, the question then is whether the terms of the Mental Health Act can be reinterpreted to give the MHRB such a review role. (The MHA’s appeal and review criteria are pretty strict, so maybe not.)

None of this would be a problem if the MHRB were itself subject to the conduct mandate. But the MHRB held that it wasn’t:

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 Thirty-Eight Steps

I’m not done yet with Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, arguably the most significant Charter judgment to date (and the most flawed). In this post, I look at the overall approach Hollingworth J adopted to analysing a Charter s. 38(1) claim:

I accept the Solicitor-General’s suggestion that in analysing whether there has been a breach of a human right under the Charter it is useful to ask the following three questions:

(a) Has a Charter right been engaged? (the engagement question)
(b) If so, did the public authority impose any limitation on the right? (the limitation question)
(c) Was any such limitation reasonable and justified within the circumstances set out in s 7(2)? (the justification question)

In my previous posts, I said that, while Hollingworth completely blew the first question, she nevertheless correctly (if overly tersely) answered the second question. But was that the right question to ask? I don’t think so. Moreover, Pamela Tate’s list omitted some important questions too.

Here are the questions Hollingworth should have asked (in this or any other case involving a decision made under a Victorian statutory provision):

1. Did the decision or its consequences engage a Charter right? (the engagement question)
2. If so, did the public authority’s decision either (a) limit a Charter right? (b) fail to do something required by a Charter right? (c) involve a failure to give proper consideration to a Charter right? (the compatibility question)
3. If so, was making a different decision or giving proper consideration to that Charter right reasonable in light of the governing statutory provision? (the statutory defence question)
4. If not, is the statutory provision a demonstrably justified and reasonable limit on Charter rights? (the reasonable limits question)
5. If not, is there an alternative interpretation (consistent with the provision’s purpose) that would make it reasonable to make a different decision or give consideration? (the interpretation question)

Sabet deserved an answer to each of these questions, but instead he only got answers (of sorts) to Tate’s three questions. What did they leave out?

How to presume innocence

While Hollingworth J’s lousy discussion of the scope of the presumption of innocence took up the bulk of the Charter discussion in Sabet v Medical Practitioners Board of Victoria [2008] VSC 346, it wasn’t the basis on which she dealt with Sabet’s claim. Instead, her only definitive ruling was her answer to the second of the three questions she posed: ‘did the Board impose any limitation on the presumption of innocence, in deciding to exercise its supervision power under s40(1)?’

This is a very difficult question. Most human rights are rights for or against particular actions: people have a right to ‘express’ things, they have a right not to have their privacy ‘interfered with’, they must be ‘told’ about the charges against them. But Charter s. 25(1) is different:

25(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Breaking this down, this right governs what must happen between two moments in time: the moment when someone is charged with a criminal offence (e.g. Sabet being charged with eight counts and rape and indecent assault on 26th March 2008) and the moment (if ever) when that person is proved guilty according to law (e.g. if and when a court enters a guilty verdict against Sabet in relation to those charges.) In between those moments, Sabet must ‘be presumed innocent’. But what does it mean to ‘presume’ innocence?

Sabet’s Charter claim was that the Board breached Charter s. 38(1), which makes this question a little less abstract:

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.

The trick is to identify what it means to ‘act in a way that is incompatible with’ presuming someone innocent. (Note that there’s a second branch to Charter s 38(1), which I’ll discuss later.) Here are some arguably incompatible actions, from least contentious to most:

VCAT vs the conduct mandate

Deputy President McKenzie’s judgment in BAE Systems Australia Ltd [2008] VCAT 1799 is significant as the first judgment on  the definition of a public authority  the Charter s. 38(2) defence to the conduct mandate and the scope of Charter s. 39, all issues dear to my heart.

Interestingly, the issue of the applicability of the conduct mandate seems to have been raised by BAE itself (with VEOHRC, it seems, missing in action on this point.):

BAE also made submissions about whether it might be a ‘public authority’ within the meaning of the Charter. In summary, and with certain exceptions, s38 of the Charter makes it unlawful for a public authority to act in a way incompatible with a human right or, in making a decision, not to give proper consideration to a relevant human right. Assuming (without deciding) that BAE is a public authority, this exemption would apply to BAE’s conduct from the date on which the exemption was published in the Government Gazette until the exemption expires. I have considered whether BAE, when it acts as the exemption permits it to do, would be acting incompatibly with a human right and in breach of s38 of the Charter.

Despite having dubiously held that neither the interpretation nor conduct mandates applied to herself, by virtue of BAE’s Christmas Eve application, McKenzie thought that the possible application of the conduct mandate to BAE might affect whether or not she should grant an exemption:

I do not accept BAE’s submission that I cannot consider whether BAE is a public authority until it acts under the exemption and someone raises that conduct under s39 of the Charter. It is clearly relevant, in considering whether or not to grant this exemption, to consider whether the Charter would apply to the conduct which BAE seeks to be exempt from the EO Act, and whether, if it is a public authority in respect of that conduct and obliged to act compatibly with human rights, it would be inconsistent with that obligation and the Charter to grant the exemption. I do not consider that the Charter affects the determination of this proceeding or the operation of any exemption granted.

At least, I think that’s what she held. Who knows where that last sentence fits in? The more I contemplate it, the less McKenize’s approach to Charter s. 2 makes sense to me. Anyway. BAE’s argument about Charter s. 39 seems to take the approach that that section is the exclusive means by which Charter s. 38 operates. McKenzie’s view appears to be that Charter s. 39 only governs when someone (e.g. a BAE employee with an unlucky nationality) can seek a ‘relief or remedy’ for a Charter s. 38 breach. See my discussion of this tricky and highly ambiguous issue here.

Now, onto the question of whether BAE, a private defence company, is a public authority. Here’s 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); or…

The rest of the list are named  entities (and not BAE.) Obviously, the only one that BAE could fall within is Charter s. 4(1)(c). Here’s McKenzie’s analysis:

It should not be assumed that I agree with BAE’s submission that it is merely a commercial supplier of goods and services to the Australian Department of Defence and so not a ‘public authority’ within the meaning of s4 of the Charter. In my view, it is arguable that what BAE does in providing services and designing, producing and maintaining land, air, space and sea defence systems for that Department might be a function of a public nature performed on behalf of the Commonwealth. It might be characterised as a function connected to or generally identified with functions of government.

A bold argument, but totally wrong.

The rights of $2 companies

A new(ish) Charter judgment has just appeared on Austlii that might have addressed some interesting questions about the interaction of Victoria’s Torrens Title system and the Charter’s unique right to property. Alas, Bank of Cyprus Australia Limited v The Registrar of Titles [2008] VSC 327 proves to be yet another example of the Supreme Court uncritically batting away a Charter issue – one raised proactively by a public authority – by relying on an unnecessary gap in the Charter’s protection of human rights, on this occasion the exclusion of corporations from protection.

The facts involve the forced sale of 333-335 Sydney Road Brunswick, better known as The Greek Bar Tavern, and the subject of multiple judgments of late. On 25th June 2006, a month before the Charter became law, the property’s owner, Marywell Investments, was placed in liquidation and the liquidator has spent the following two years trying to sell the property. Standing in his way is the man behind Marywell (and the continuing occupier of the The Greek), George Velissaris, who has been trying to do everything he can to stop the sale. This included placing caveats on the property alleging that Marywell had leased or sold the property to him or others, which the liquidator got struck off citing the uncommercial nature of such transactions. That allowed the property to finally be sold at auction in March this year, however that sale was further frustrated by fresh caveats. One, lodged by Velissarus on behalf of his daughter,  led to a ban on him and his family from lodging further caveats and an order for him to pay the liquidator’s legal costs. But the focus has now moved to a $2 corporation, ‘Sydney Road 333′, which lodged a caveat claiming to have been sold the property by a third party late last year. Unsurprisingly, that caveat was also struck off.

The present case involves two bystanders who became caught up in these events. The plaintiff, the Bank of Cyprus, was the finacier for the auction purchase, which was cleared to go ahead after the last caveat was struck off. On a Thursday in June, it forwarded the money to the purchaser in exchange for the mortgage document but, held up by a ‘requisition’ it fatefully delayed registering the documentation until the following Monday. In the meantime, on the Friday, a director of  Sydney Road 333 lodged an appeal against the removal of its caveat. As a result, the defendant, the Registrar of Titltes , to refuse to register the bank’s documents, exercising a long-established discretion described by the High Court in the following terms:

[T]he Registrar is not an automaton; he has a high and responsible public duty to discharge, and he has an obligation to see that the purpose of the Act is neither destroyed nor prejudicially affected. He has the right and the duty to preserve his entries and records from confusion, and to prevent the intrusion of anything calculated to obscure or mislead, or even to impede the ordinary and practical working of his department. He has also in certain cases a necessary discretion, though forms are complied with, to act so as not by undue haste or too facile compliance with any application to do what appears to him may be a wrong to another person, or bring a claim upon the assurance fund.

In particular, the Registrar cited the danger that the registration of the bank’s documents, which trigger the indefeasibility of the bank’s mortgage, might defeat any claim that Sydney Road 333 was able to establish in its appeal.

Interestingly, the Registrar relied on the Charter in taking this approach, although the nature of its reliance isn’t revealed in this judgment. This is quite noteworthy as an instance where a public authority proactively raised the Charter as guiding, perhaps limiting, its pre-existing discretion. While it’s possible that the Registrar’s argument was about the interpretation of the Transfer of Land Act 1958, it is  more likely that the argument was based on the combination of these two Charter sections:

20 A person must not be deprived of his or her property other than in accordance with law.

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.

The Registrar, by altering the register, is a body that is uniquely capable of depriving someone of property (via the operation of Torrens Title indefeasibility.) Arguably, doing so in circumstances when a properly notified contrary claim is the subject of legal proceedings could be regarded as doing such a deprivation ‘other than in accordance with law.’ (It might also be seen as limiting the claimant’s right to have the civil dispute determined by a fair trial.) There’s no similar risk for the Bank and auction purchaser, as their interests are protected in the (likely) event that Sydney Road 333’s appeal failed. So, arguably, the Registrar’s exercise of its discretion is confined by the conduct mandate to prevent it from facilitating an indefeasible registration in these circumstances. It’s an interesting and novel application of the Charter’s conduct mandate in a private law setting.

Alas, the merits of the Registrar’s approach (whatever it was) were never addressed.