Transition in Indonesia

Indonesia enacted its human rights law in 2000 and its constitutional court began operation in 2003. Its very first decision was to declare unconstitutional the retrospective application of Indoensia’s anti-terror laws to the Bali bombings. More recently, it issued a ten-year moratorium on the death penalty. And, today, the Bali bombers Amrozi, Mukhlas and Imam Samudra, who were convicted under Indonesia’s anti-terror laws, were executed for their crimes. It’s a case study of how transitional issues can cause a human rights law to go awry. Such issues, in a much less extreme form, also bedevil Victoria’s Charter.

SIx days after the Bali bombings, Indonesian President Megawati Sukanoputri issued an emergency decree setting out new terrorism offences. The Indonesian Legislative Assembly confirmed that law, as well as a further emergecy decree stating that the terrorism offences could be used against the Bali bombers. Various Bali bombers were soon convicted and sentenced to death. All of them raised constitutional objections to their trial and convictions based on this provision of the Indonesia’s Bill of Rights:

Art 28I(1) The rights to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human rights that shall not be curtailed under any circumstance

This provision is clearly relevant to the Bali Bombers, who were convicted under a law passed six days after the bombings and whose life is very much at stake.

Article 28I(1) covers the ground of a number of  Charter rights, including:

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

27(1) A person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

(4) Nothing in this section affects the trial or punishment of any person for any act or omission which was a criminal offence under international law at the time it was done or omitted to be done.

The omission of an equivalent to Charter s. 27(4) in Indonesia is controversial, given the repeated claims of human rights abuses by former regimes. The Bali court trying the bombers all rejected the bombers constitutional arguments, on the basis that the bombings were offences against international law and that in any case they should be limited in accordance with an Indonesian Constitutional provisions concerned with respecting the rights of others, which could be regarded as roughly similar to Charter s. 7(2).

However, when a lesser participant in the bombings – Maskyur Abdul Kadir – took his conviction for pariticpating in the bombings to the Constitutional Court in 2004, the Court, in a 5-4 decision, construed Art 28I(1) according to its literal terms and declare Indonesia’s terrorism law unconstitutional in relation to its retrospective effect, including to the Bali bombings. Since 2004, all prosecutions in relation to the Bali bombings have since been conducted under the existing Criminal Code, covering offences like murder and using explosives (which still carry the death penalty.) There would seem to be no cogent objection to retrying the people already convicted – including  Amrozi, Mukhlas and Imam Samudra – under those laws.

So far, so straightforward. But then things get weird. And deadly.

The Charter’s complex war on terror

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Lost in transition

On October 3rd, Carolyn Evans spoke at the annual ‘Protecting Human Rights’ conference about the Charter litigation to date and pointed out Victorian judges’ and tribunal members’ troubling inability to get a simple date right when reading Charter s. 49(2), a matter that this blog has given a lot of attention. The day before, the Charter’s appalling transitional provision was being debated in the Supreme Court, in a hearing enhanced by the Attorney-General’s intervention. And, just one week later, another misreading for Evans’s list, in Devine & Legg v VCAT [2008] VSC 410.

Readers of this blog will know Charter s. 49(2) by heart:

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

And here’s what Justice David Beach had to say about the application of the Charter:

The Charter has no direct application in this case. The VCAT proceeding was commenced and concluded prior to the operative commencement date of Division 3 of Part 3 of the Charter. This proposition is not contested by the plaintiffs. The plaintiffs now rely on the decisions of Tomasevic v Travaglini and DPP v TY (No.3) as authority for the propositions that the rights in the Charter “apply in substance” prior to the Charter’s commencement date by “operation of international law on Victorian law directly”. Whilst the Attorney General contends that this is an over-simplification of the principles expressed by Bell J in Tomasevic, the Attorney General accepts that the body of international covenants from which the relevant rights in the Charter are drawn may be used as an interpretive aid and, in appropriate cases, as a relevant consideration in the exercise of judicial powers and discretions. Further, there is no issue between the parties that the common law has long recognised a right to a fair trial.

This is, for what it’s worth, a new wrinkle in the sad history of misreadings of Charter s. 49(2): instead of simply wrongly assuming that Part 2 commenced the same time as Divisions 3 and 4 of Part 3, Beach just replaces the words ‘Part 2′ with “Division 3 of Part 3′. The result is the same: the reach of the Charter’s appalling transitional provision for proceedings is extended by a year. It’s true that, unfortunately, Devine & Legg (or, more precisely, Victoria Legal Aid) apparently joined in the error. But why on earth didn’t Beach listen to the Attorney-General, who intervened as of right in the proceedings under Charter s. 35 just so the Supreme Court wouldn’t be misled by bad lawyering?

Now, some people will say that Beach J still got the right result. After all, didn’t the VCAT proceedings over racial vilification commence in 2005? Well, they did, but that wasn’t the matter before Beach.

An Un-Chartered conviction

A development I have long feared has come to pass:  a guilty verdict in a Victorian criminal case has been upheld despite a Charter argument that might have led to an acquittal. This year, most criminal cases where the Charter has been considered have been interlocutory or collateral matters: bail, DNA sampling, proceeds of crime, trial process, etc. The one exception was DPP v Zierk [2008] VSC 184, where the Charter was held not to apply (and Warren CJ, of course, made it clear that she’d blow it off anyway even if it had) but the defendant was nevertheless acquitted on ordinary statutory interpretation grounds.

Not so in Howe & Ors v Harvey; DPP v Tinkler & Ors [2008] VSCA 181, where the Court of Appeal upheld five findings by the Magistrates Court of breaches of s26 of the (since repealed) Children and Young Persons Act 1989, which provided:

26(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of— (i) the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) and the Neighbourhood Justice Division, in which the proceeding was heard; or (ii) a child or other party to the proceeding; or (iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the Secretary granted in special circumstances in relation to a child who is the subject of a custody to Secretary order or a guardianship to Secretary order, any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:

(a) In the case of a body corporate – 500 penalty units.

(b) In any other case – 100 penalty units or imprisonment for 2 years…

The case concerned stories (arising in a chain of events recounted by Media Watch here) in the Herald Sun, Today Tonight and Sunrise to the effect that a 14-year old had ‘won a divorce from his mother… on the grounds of irreconcilable differences.’, accompanied by the usual blather about crazy authorities, spoilt brats and parents’ rights. The child had obtained a protection order from the Children’s Court under the then s84 of the CYPA (now s274 of the Children, Young Persons and Families Act 2005.)

Crucially, the various reports gave the child’s name and showed his photo, so it might seem a no-brainer that they breached s26. However, the Court of Appeal expressly ruled that s26(1)(a), at least, was ambiguous in one very relevant respect: does the ban only cover reports that identify the proceedings as Children’s (or related) Court proceedings, or does it extend to the situation here, where the reports only mentioned the outcome of the process and either didn’t mention the Children’s Court or buried it in a reference to ‘the authorities’.? The defendants pointed to numerous decisions elsewhere in Australia and overseas that read similar (but not identical) provisions narrowly, e.g. confining them to narrative accounts of proceedings or to photos while a proceeding was ongoing or to revelations that would have been understood by an ordinary member of the public. In each case, a narrower reading could arguably have meant that the various reports weren’t in breach of the section and, therefore, that the guilty verdicts were wrong.

It might also be thought that the defendants may gain little help from the Charter, because their rights are not the only ones at stake. Charter free expression is balanced against others’ rights, both internally and in two other express rights:

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

(3) Special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary- (a) to respect the rights and reputation of other persons…

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

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

However, the defendants drew on powerful arguments from the case-law to the effect that a narrow reading of s26 is the appropriate way to strike the balance.

Notably, in Clayton v Clayton [2006] EWCA Civ 878, the UK Court of Appeal gave a narrow reading to a provision that was similar to s26(1)(b) (confining it to ongoing procedures), on three grounds. First, that a decision by the relevant court on a case-by-case basis (available under inherent jurisdiction) was preferable to a blanket decision. (Victoria’s Children’s Court has the power to suppress individual proceedings, whether or not s26 applies, derived from the powers of the Magistrates Court.) Second, that a blanket, open-ended and ambiguous ban would fail the ‘lawful restriction’ test for limits on human rights, while a specific ban issued by the court in question would make it clear to everyone what publications were permitted.  Third, that the penal context – note that s26 carries a potential prison sentence – meant that ambiguities should be resolved in favour of a narrower reading of a criminal provision. These concerns are all familiar parts of human rights law that are routinely applied to resolve difficult conflicts between competing rights and interests and, indeed, the UK case was expressly concerned with the balance between free speech and children’s privacy rights.

So, actually, it’s surely a no-brainer that, at least in the resolution of statutory interpretation questions that the Victorian Court of Appeal considered ambiguous, close attention should be paid to cases like Clayton v Clayton pursuant to Charter s. 32:

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

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

Alas, no:

Clayton can be distinguished on the basis that the Court of Appeal was required to interpret the legislation consistently with the European Convention… In the instant case, it was not contended in oral submissions that the Charter of Human Rights and Responsibilities Act 2006 should be applied in interpreting s 26(1), so the same considerations do not apply.

Oh dear.

Hulls’s Charter report card

Rob Hulls, acting premier, deputy premier, A-G and founding father, came to speak at Melbourne Law School today. Alas, the students were not hanging from the rafters as they do for Kirbs. And more’s the pity because, much to my surprise, Hulls is a gifted speaker and, moreover, had plenty of interesting things to say. That may well not be news to people who know him, but I’ve never heard him speak before outside of head-kickin’ soundbites on the news. And, call me jaded (really!), but I’m used to politicians just blabbing out a bunch of mundane political-feed-good-speak, scribbled out by some bored public servant the day before. Yes, I’m talking about you Rob McClelland. (I’m judging that by the media releases he sends me. Maybe you just have to be there.) For that matter, most of the things I read these days, purportedly written by Hulls, are some pretty turgid and defensive statements of compatibility.

So, it was great to hear him describe his journey from law school to acting premier, via Queensland. And it was frankly inspiring to hear his commitment to improving the justice system. It was the latter that brought me to his speech, hoping to hear some tidbits about Justice Statement 2: Electric Boogaloo. He mentioned some new lists for courts (mental health) and the unification of the court system. I thought at first that that meant shifting VCAT to the old magistrates’ court building (which it probably does), but it also apparently means having a single statute for all of the courts. (Big new statutes are defintely not music to my ears, although that one does sound like a great idea.) And lots and lots of ADR – appropriate dispute resolution. Aw.

Anyway, the Charter got a relatively brief mention as one of his achievements, with him emphasising how its main aim is to restrain the executive. (No mention of the parole boards!) And a student asked Hulls about the chances of economic and social rights being introduced after the 2011 review. Hulls’s answer: nope. Basically, it won’t happen unless there’s bipartisan support for the Charter, and we’re a long way from that. Indeed. (Strange that he didn’t mention the federal charter either, which surely is a factor).

But there was one last comment he made that I want to explore a touch. He noted that there are still ‘doomsayers’ who predict that the courts will become clogged with Charter litigation and that criminals will roam the streets. His response was to note, as a positive thing, that the Charter has not yet been raised successfully by any criminal defendants. Is that true? It depends on your definition:

• There’s Kelly Gray from Echuca, who got bail from Bongiorno J back in January, on the basis of his Charter right to a guarantee of a trial without delay. I’m not sure why he doesn’t count: perhaps because he didn’t raise the Charter (Bongiorno did), perhaps because Bongiorno more or less ignored the whole of Part 3 to give him bail.
• There’re at least two more Charter bailees, Qang Hung Pham and  Zlate Cvetanvoski, reported in the media in the Magistrates’ Court. Surely they count? Or is Hulls only talking about cases where Charter s. 35 notices were issued (i.e. Supreme and County Court cases?) For all I know, there’ve been hundreds of these cases.
• And what about the brothers Mirik? It’s true that the court didn’t apply the Charter in their case, but that’s because, once the Miriks issued their Charter s. 35 notices and everyone intervened, Victoria Legal Aid blinked and gave them a (joint) counsel. It’s clear that, but for the Charter, they would have been on their own when it came to defending against a crimes compensation claim. Do you need a court order to count? Or is Hulls discounting them because, like Bell J, he thought the proceedings were civil?
• Next, there’s TP: she avoided eviction for her ex-partner’s crimes. But this is a pretty slim case, as TP was no criminal herself (even though the Department of Housing was happy to treat her like one, instead of the victim of violence they later conceded her to be) and the proceeding was certainly civil. Still, VCAT member Nhill certainly thought that the Charter will mean that future evictions of criminals will be even harder. Good news for the doomsayers?
• Finally, Hai Minh Nguyen and Andrew Duncan, drug offenders, got some sort of vague ruling in their favour from the County Court using the Charter, in their battle against the proceeds squad’s designs on their houses. The Supreme Court affirmed the ruling, without mentioning the Charter.

OK, so Hulls is fairly close to the mark in his claims that the Charter has not benefitted any criminals (give or take the odd baillee and asset-rich drug offender.) Of course, it’d be good to know what was going on the in the County and Magistrates’ Courts, where most criminal defendants hang out. Maybe that proposed unified court system will manage to have a unified website for publishing judgments too?

But isn’t it also worth asking whether the lack of happy defendants is evidence that the Charter is working. Hulls conceded that a number of defendants have tried and failed. Apart from (possibly) the above, who are fish the Charter rejects?:

VCAT vs Charter s. 49

Of the four potential Charter cases that came out this week, just one is now available online: the VCAT decision, BAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799. As I guessed, this is an application by a defence contractor for an exemption from the Equal Opportunity Act’s ban on nationality discrimination in employment, to fit in with the US’s discriminatory approach to security. VCAT Deputy President Cate McKenzie didn’t much like the US’s policy:

[A]lthough this comment is unlikely to influence the framing of the Australian and US security requirements, I would have thought that the use of nationality-based measures to prevent unauthorised access to information or material is a blunt and imperfect instrument. Assessment of individuals on a non-stereotyped basis, or training and education about the importance of the obligation of secrecy, would seem to me to be a better approach.

No kidding. But, just like every other decision that’s ever been made on this issue, McKenzie granted the exemption (albeit with more conditions than BAE wanted.) South Australia’s Equal Opportunity Tribunal granted BAE an exemption last year, so VCAT’s exemption saved 180 employees at BAE’s Abbotsford digs from having to move to Adelaide! Discrimination was obviously the lesser of two evils. Alas, McKenzie, in passing, engaged in some Charter analysis of unprecedented lousiness.

As I previously noted, VCAT had granted a number of similar exemptions last year, accompanied by warnings that, next time, the Charter may change things, with the Charter’s interpretation mandate becoming operational at the start of this year. In the ACT, where a brand new interpretation mandate identical to the Charter’s kicked in on 18th March this year, its equivalent to VCAT has already considered whether its approach to exemptions was compatible with human rights. (It decided that it was.) But, amazingly, McKenzie held that the Charter’s interpretation mandate, which was in place for two-and-a-half months before the ACT’s, didn’t apply to BAE’s application!

Alas, McKenzie was helped to this conclusion by VEOHRC. This is what Victoria’s defender of both equal opportunity and human rights (and typically the only opponent to applications for exemption) had to say in relation to BAE’s application:

Apart from submissions by BAE, the only other submission received was a letter from the Commission noting that the Victorian Charter of Human Rights and Responsibilities (the Charter) did not apply to this proceeding and also that, if VCAT granted the exemption subject to conditions involving reporting to the Commission, the Commission would be willing to accept this role.

Although we aren’t told, it sounds like VEOHRC is relying on the Charter’s transitional provision for proceedings:

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

Part 2 commenced on 1 January 2007. So, when did BAE’s proceeding commence?:

On 24 December 2007 BAE applied to VCAT for exemption under s83 of the EO Act.

Oh no. Oh god no. Not again. Please not again. So now VEOHRC can’t read a statute either. I blame our lousy law schools…

Fortunately, Deputy President McKenzie has the apparently rare ability to get a simple date right:

The explanatory memorandum for the Bill which eventually became the Charter explains that s2 was intended as a staggered commencement provision, in order to allow government to review existing laws, policies and procedures for Charter compliance. Among other things, it says that s 49 provides that the Charter ‘does not apply to legal proceedings commenced before 1 January 2008’ and that the Charter ‘may not be relied on in proceedings commenced before that date’. It explains that s49(3) means that ‘the obligations upon public authorities in the Charter to do not apply to an act or decision made before 1 January 2008’. There is a difficulty with s49(2). It provides that the Charter does not apply to proceedings commenced or concluded before the commencement of Part 2. That part commenced on 1 January 2007, not 1 January 2008. But s2 directly provides that Division 3 of Part 3 (the division in which the obligation to interpret statutes in a rights-compatible way appears) commences on 1 January 2008.

In the light of the explanatory memorandum, I suspect that the reference to the commencement of Part 2 in s49(2) is an error. However, the wording is clear and I am not prepared to say that the result is so absurd that Parliament could never have intended it. After all, the bulk of the Charter commenced on 1 January 2007. If s49(2) contains an error, it is an error that will need to be corrected by Parliament. In my view, s49(2) does not apply to this proceeding, because this proceeding was commenced after the commencement of Part 2, that is after 1 January 2007

Thank god. She’s completely right about all of that. Alas, despite that second-last sentence, she still ‘corrected’ Parliament’s error with her own woeful approach to retrospectivity:

The Charter vs DNA sampling

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

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

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

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

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

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

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

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

The retro Charter

The new case from the Mental Health Review Board raises a difficult question about the retrospective operation of the Charter. The respondent wished to bring the Charter’s interpretation mandate to bear on the question of whether the MHRB’s failure to review the extension of his community treatment order in 2007  meant that the order became invalid. The problem is that the interpretation mandate didn’t exist at the time:

2(2) Divisions 3 and 4 of Part 3 come into operation on 1 January 2008.

For a change, this question isn’t a matter of applying the Charter’s transitional provision:

49(1) This Charter extends and applies to all Acts, whether passed before or after the commencement of Part 2, and to all subordinate instruments, whether made before or after that commencement

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

(3) Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.

While it might be argued that the MHRB matter in some respects commenced in 2005 – when the respondent was first made the subject of an involuntary treatment order – or 2006 – when his CTO was first reviewed by the MHRB, everyone in this matter seems to have assumed that the proceeding either commenced in 2007 – when the contentious CTO extension made made and not reviewed – or 2008, when the MHRB belatedly decided to review the matter, thus keeping it free from the dreaded Charter s. 49(2). Charter s. 49(3) bars the operation of the conduct mandate (at least until 1/1/8) but not the interpretation mandate. And Charter s. 49(1) – which appears to cover the interpretation mandate – speaks only to the statutes it covers, rather than the conduct that might be affected by any re-interpretation.

So, can Charter s. 32 have any effect on matters before 1/1/8? The MHRB, adopting the argument of the Attorney-General (who is making a habit of this sort of Charter-shrinking stance) said ‘no’:

 It is the decision of the legal member that s2(2) sets out the commencement date of the Charter, clearly indicating that the Charter rights come into effect from 1 January 2007, but that Divisions 3 and 4 of Part 3 come into operation from 1 January 2008…. Therefore, it is the decision of the legal member that the Board can only cover the impact of the Charter on and from 1 January 2007, and is unable to apply it, in any respect, to… its interpretative powers under s32 before that date.

And this is just bad law. Commencement provisions are not transitional provisions. Rather, they simply define what ‘retrospective’ means for a particular provision. Whether the provision applies retrospectively is a matter of statutory interpretation. And that’s a complex question indeed.

Without a doubt, the most pertinent and comprehensive discussion of the very question of the retrospective operation of a human rights interpretation mandate occurred earlier this decade in the UK, notably, in Wilson & Ors v. Secretary of State for Trade and Industry [2003] UKHL 40. There, the House of Lords said of its interpretation mandate (s. 3 of the UKHRA), in observations that could be equally made of Charter s. 32:

On its face section 3 is of general application. So far as possible legislation must be read and given effect in a way compatible with the Convention rights. Section 3 is retrospective in the sense that, expressly, it applies to legislation whenever enacted. Thus section 3 may have the effect of changing the interpretation and effect of legislation already in force. An interpretation appropriate before the Act came into force may have to be reconsidered and revised in post-Act proceedings. This effect of section 3(1) is implicit in section 3(2)(a) [which is similar to Charter ss. 49(1) & 32(3)] So much is clear.

Considerable difficulties, however, might arise if the new interpretation of legislation, consequent on an application of section 3, were always to apply to pre-Act events. It would mean that parties’ rights under existing legislation in respect of a transaction completed before the Act came into force could be changed overnight, to the benefit of one party and the prejudice of the other. This change, moreover, would operate capriciously, with the outcome depending on whether the parties’ rights were determined by a court before or after 2 October 2000. The outcome in one case involving pre-Act happenings could differ from the outcome in another comparable case depending solely on when the cases were heard by a court. Parliament cannot have intended section 3(1) should operate in this unfair and arbitrary fashion.

The answer to this difficulty lies in the principle underlying the presumption against retrospective operation and the similar but rather narrower presumption against interference with vested interests. These are established presumptions but they are vague and imprecise.

The key point is that the House of Lords recognised (and the MHRB failed to recognise) that the presumption against retrospectivity is not a blanket rule but rather a rule to achieve a nuanced (or vague) purpose. Where that purpose – of preventing unfairness to people when the rules are suddenly changed -isn’t served (Lord Nicholls gave the significant example of post-commencement criminal prosecutions in relation to pre-commencement conduct where the rules shift in favour of the defendant), then retrospectivity is fine. The major sticking point is where legal rights have already ‘vested’ before the rules changed. This is what occurred in Wilson, where Ms Wilson got the benefit of a consumer protection law that voided a dodgy loan she signed purely because the lender had filled in the form wrong, leaving her with a free car and no debt; it would have been wrong, the Lords held, to re-interpret the law as having a less draconian impact on the lender’s contract, as that would have disturbed her rights under that law, which vested the moment the contract (briefly) came into existence.

By contrast, in the MHRB case, there are no vested rights or interests. The CTO was either valid or it wasn’t; it would be bizarre for the MHRB or the psychiatrist to say that they had a vested interest in that. Notably, the respondent was suing the MHRB or his psychiatrist for their conduct in making him take medicine for the last couple of years; he just wants out of his CTO now.

In fact, I think the House of Lords approach is so sensible that I’ve recently argued in the July LIJ that Charter s. 49(2) – which woefully excludes the Charter from proceedings started before 2007, not only retrospectively but prospectively – ought to be re-interpreted in light of Charter s. 32 so that it only excludes that operation in the circumstances set out by the House of Lords in Wilson. (More on that argument another time.) The silliness of the MHRB’s (and Attorney-General’s) approach is that it would exclude the retrospective operation of the Charter even in cases where Charter s. 49(2) doesn’t apply, effectively confining the impact of Charter s. 49(2) to its indefensible prospective effect. Crazy.

I’d argue the exact opposite:  in situations not covered by Charter s. 49(2) – that is, in proceedings commenced after 1/1/7 – the interpretation mandate should be fully operational to all events dealt with in the proceedings, no matter when they occurred. Here’s why:

The Charter vs eviction

Hot on the heels of the major new Charter judgment by the Mental Health Review Board, another briefer Charter judgment has appeared on Austlii, showing that June wasn’t so quiet after all. Director of Housing v TP (Residential Tenancies) [2008] VCAT 1275 was brought down three weeks ago and is the Director of Housing’s second attempt to obtain a ‘possession’ order (i.e. an eviction order) against TP, after the first was overturned by the Supreme Court for reasons that aren’t explained in this judgment. The facts of the case, at least those described in the judgment, are simply outrageous. It’s difficult to believe that the case ever got to VCAT, let alone beyond it. I really hope there’s something we don’t know about going on behind these scenes…

TP has been leasing her premises (managed by Aboriginal Housing) for fifteen years. She currently lives there with her four kids and is on two lengthy waiting lists for alternative housing, both to get extra space and in response to violence from DG, the father of two of her kids and the subject of a couple of two domestic violence orders obtained by TP. In March last year, DG showed up at TP’s premises after he was thrown out by his mother because he had brought pots of cannabis plants into her house. TP initially refused him entry, not least because of the cannabis pots he was carrying, but, ultimately, feeling threatened, she allowed him to stay. She insisted that he keep the pots outside while the kids were about, but he insisted on bringing them in at night. After three days, following an unidentified tip-off, the police arrived and arrested DG for cultivating cannabis. That’s the last she saw of him and his pots of pot, but it wasn’t the end of her trouble. Instead, two months later, she was served with an eviction notice by the DoH. Now, my first thought was that the DoH must have thought that the facts were somewhat different. However, in VCAT, it didn’t contest the facts but nevertheless continued to seek TP’s eviction.

The legal issue is whether the DoH could, in these circumstances, issue an eviction notice pursuant to the Residential Tenancies Act 1997:

250(1) A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.

This is a tricky question, because s250(1) isn’t triggered by the simple fact that a crime occurred in a rented premises. Instead, the premises must be ‘used’ for that illegal (in this case, criminal) purpose. Illegality in premises can range from a permanent installation of cultivation equipment (clearly a ‘use’ of the premises) through to someone visiting with an E in their pocket (clearly not.) The DoH argued that TP’s premises were ‘used’ to provide shelter and security for DG’s cultivation of pot, but VCAT member Genevieve Nihill disagreed She felt that the mere presence of DG’s pots in TP’s garden and laundry – given the transience of DG’s stay (albeit only because of police interruption) and the primary use of the premises as a residence for TP and her kids – were at the other end of the use ‘continuum’. Indeed, Nihill wryly – if tangentially – observed that DG’s pots were not much more of a use of TP’s premises than the equally criminal violence DG had perpetrated against TP there on other occasions.

While that settled the issue, Nihill – unprompted by the parties – raised the Charter as a fallback argument, in particular Charter s. 13(a) (privacy) and Charter s. 17 (protection of families and kids):

In this case, if section 250 were interpreted in the context of these facts, so that the premises were said to have been used for an illegal purpose, the tenant and her children would have been evicted from their home of fifteen years. They may have faced the prospect of extended homelessness. On the other hand, the only interference to the rights of the landlord appears to have been that for three days last year a person stayed in the rented premises with some cannabis plants. If the fact situation of the case had placed it close to the half way mark along the continuum, an interpretation of the statutory provision in accordance with the Charter may have tipped it to one side.

If Nihill’s right, then more significant connections between illegal acts and the premises wouldn’t be enough to justify eviction. Maybe s. 250 wouldn’t have been satisfied even if the cannabis had stayed for a month, or was TP’s or one of her kids’, or DG did some dealing on the premises. If so, the Charter’s going to make a significant difference to Victorian rental law and practice. So, DoH v TP is an interesting judgment indeed.

But is Nihill right?

A judgment at last!

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

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

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

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

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

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

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

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

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

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

The quiet Charter

Today marks thirty days since the last reported Charter case (Zierk, on 30th May.) I’m basing this on Austlii reporting, which covers the VSC, VCA and VCAT, but not the Magistrates’ or County Courts. That’s the whole month of June, the sixth month of the Charter’s full operation, without this major statute being so much as mentioned by the state’s top court and administrative law workhorse.

What does this mean? Here’s some possibilities:

First, it could just be a statistical blip (something that’s almost inevitable given the tiny sample size.) Last month, May, there were six cases that got a Charter mention, compared to one in April, so this month might have some evening up. On the other hand, I can’t see next month being big, with the winter recess and all. And surely everyone was expecting the numbers to grow as the year progressed?

Second, it could be a welcome development: a decline in pointless passing mentions of the Charter that do little more than pay symbolic lip service to a statute that has a number of non-symbolic and highly complex provisions.

Third, it could be a worrying development, pointing to a gap in confidence or access to the Charter amongst litigants. There are a number of potential culprits: (a) the stupid transitional provision, Charter s. 49(2) (though its effect should be declining as time passes.) (b) the notice provision, Charter s. 35 (which Bongiorno J reckons imposes a mandatory delay as a penalty for raising the Charter, but which I don’t think requires that at all) (c) s78B of the Judiciary Act 1903 (Cth), which – in combination with some dubious constitutional arguments being put by the Attorney-General and some dubious refusals by the courts to apply its expedition provisions – will impose mandatory delays and costs as a penalty for raising the Charter; (d) the Charter’s numerous drafting problems, which might have scared off litigants who don’t want to hire a QC to nut out all the weirdness; (e) the Charter’s many gaps and loopholes, which might have narrowed its potential operation to too few cases.

Despite mulling this over, I really have no idea what is going on. For all I know, there have been heaps of Charter cases but in the lower courts or settled before any judgment is reached. And there may be a stack in the pipeline.

But, from my Austlii-based perspective, there did seem to me to me a fair number of openings for Charter arguments in the last month. Here are some from just the past week from the Supreme Court:

Another jihad against Jack

Today’s news is a big disappointment to me:

Victorian man Jack Thomas will be retried on terror charges after an appeal by his lawyers was dismissed today. The former Melbourne taxi driver, dubbed Jihad Jack, was cleared of terror charges in 2006 but the Victorian Court of Appeal today ordered a retrial following new alleged evidence. The retrial was ordered on charges of accepting money from al-Qaeda and possessing a false Australian passport following interviews Thomas did with the ABC’s Four Corners program. But Thomas’ lawyers argued the prosecution case was relying on a media interview that did not provide fresh evidence and did not warrant Thomas being retried. Today Justices Chris Maxwell, Peter Buchanan and Frank Vincent rejected the appeal and ordered the trial to go ahead.

With a retrial pending, it’s difficult to fully discuss this case (and I guess we won’t be seeing any docudramas any time soon.) The new judgment from the VCA is yet to appear on Austlii and maybe it won’t, given that the other judgments from this case have all been taken down, as has the Four Corners interview. (Subscribers to commercial databases, or visitors to any law library, can, of course, read the relevant judgments in the Victorian Reports. And the less privileged can google. But we must keep up pretences.)

But the Age article reveals the basics. Thomas was tried. The trial was bung. (Why the reasons for this have to be a secret is beyond me, but I’ll leave it at that.) Now he’s being re-tried. There’s nothing unusual about re-trials, but the odd thing here is that the main (and perhaps sole) evidence to be adduced at the re-trial is a Four Corners interview Thomas did that was screened after Thomas’s original trial. So, his new trial will be based exclusively on evidence that wasn’t adduced at the original bung trial.

The question of whether or not Thomas should be re-tried turns, in part, on this statutory provision:

568(2) …[T]he Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

There’s a clear test for how this discretion should be exercised, from a unanimous High Court judgment from 1984 (ah the good old days):

The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

It’s obvious that the first test is not met in this case. But the Court of Appeal decided that the High Court’s test doesn’t apply when there’s new ‘fresh’ evidence (fresh in the sense that the prosecution didn’t and couldn’t know about it. Apparently, the AFP and the Cth DPP doesn’t know anything about who alleged terrorists are speaking with. I feel so safe. [EDIT: No, it turns out ASIO did know, but apparently that wasn’t enough to make it ‘fresh’. Eh, why bother with a ‘fresh’ requirement anyway?) And they also decided that any unfairness to Thomas from the sequence of events (including the fact that the error in Thomas’s original trial was only detected after the interview was broadcast, which is hardly Thomas’s fault) was outweighed by the burning need to prosecute Thomas for the brand spanking new offence of receiving funds from terrorists with its oh-so-appropriate twenty-five year maximum penalty. These appeal judges are warriors for justice.

Now I’m curious about a lot of things about this case, including whether or not the Court of Appeal (which was so bold in its original appeal judgment) was affected by the media storm that followed it – including personal attacks on President Maxwell, who was part of the bench on all the subsequent backtracks – and also the question of whether the new evidence, fresh or otherwise, is admissible given the law on admissions (such as it is.) But what I’m really really curious about is whether the Charter has played any role in today’s appeal.

Interpretation mandate applied

In what appears to be a Charter first, a judgment is now on Austlii showing an application of the Charter’s interpretation mandate, Charter s. 32(1), to reject a previous interpretation of a provision. The actual decision was made on 1st April, but the reasons were only announced on 1st May and only appears on Austlii very recently. (VCAT seems to be tardy in assigning judgment numbers and seems to be doing so in reverse chronological order.)

Guss v Aldy Corporation Pty Ltd & Anor (Civil Claims) [2008] VCAT 912 is a procedural ruling as part of a long-running dispute about misleading and deceptive conduct in relation to a sale of a Docklands apartment. (The nature of the dispute is not specified, but it’s well known that there have been lots of disputes of this sort in relation to the Docklands, where a fall in property prices has left many off-the-plan purchasers owing more than they own.) Joanne Guss hasn’t made herself popular by being very tardy in pursuing her claim, missing many case management deadlines. The last straw as that she didn’t show up to her latest ‘compulsory conference’ on 22 November last year. The respondents convinced the tribunal member to put the action out of its misery using this provision:

87 If a party does not attend a properly convened compulsory conference-

(a) the conference may proceed at the appointed time in the party’s absence; and

(b) if a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may- (i) determine the proceeding adversely to the absent party and make any appropriate orders; or (ii) direct that the absent party be struck out of the proceeding.

All the other parties happilly agreed that the claim should be dismissed with costs.

Alas, for Aldy Corporation, that wasn’t the end of the matter. Guss sought to use this statutory provision to revive her claim:

120 (1) A person in respect of whom an order is made may apply to the Tribunal for a review of the order if the person did not appear and was not represented at the hearing at which the order was made.

(4) The Tribunal may- (a) hear and determine the application if it is satisfied that the applicant had a reasonable excuse for not attending or being represented at the hearing; and (b) if it thinks fit, order that the order be revoked or varied.

Aldy resisted the application on the ground that the compulsory conference that Guss missed wasn’it a ‘hearing’. In making this argument, Aldy had some powerful arguments on its side:

• Compulsory conferences are designed to promote settlement. VCAT’s main role in such hearings is adminstrative
• The VCAT Act has one division for ‘hearings’ and another for ‘compulsory conferences, mediation and settlement’
• The provisions on compulsory conferences assume that they take place ‘before’ hearings
• Pizer’s Annotated VCAT Act takes the view that conferences aren’t hearings
• There were two decisions of VCAT (including one by its President in 2004 and another in September 2007) holding that mediations (different from compulsory conferences but in the same division) aren’t hearings for the purposes of s. 120

VCAT member Alan Vassie gave three reasons for rejecting these arguments. First, although VCAT mainly plays an administrative role in conferences, its exercise of s. 87 is a judicial function that involves hearing evidence and so forth. Second, s. 120 is a remedial provision and should be interpreted broadly. And, third, the Charter:

The right to religious dentistry

Those folks at VCAT sure get some… interesting cases. Dental Practice Board of Victoria v Gardner (Occupational and Business Regulation) [2008] VCAT 908 is the first ever case to be decided by VCAT under the (kinda) new Health Professions Registration Act 2005. It involves Highton dentist Paul Gardner:

In 2006 Dr Gardner came to the attention of the Board following a complaint by a patient. In brief, the conduct complained of was an inappropriate and unsolicited advice made to the patient suggesting that he could assist her condition of paranoid schizophrenia. He suggested to her that she was possessed by evil spirits, suggested she should attend his church for spiritual healing, and suggested once this had occurred she could discontinue the medication prescribed for her.

Dr Gardner explained to the Board that the complaint concerned the use of his religious beliefs in his dentistry:

One of the reasons my practice is building at such a rate is that we successfully deal with the spirit of fear that oppresses so many patients (2 Timothy 1:7). This spirit of fear is the cause of behaviours such as needle phobia, non-attendance leading to a mutilated dentition, gagging, anxiety, crying and vomiting. I say a simple command prayer and the behaviour ceases and does not return. The patient leaves feeling different and knowing that they have been touched by Jesus Christ. Please note that this is offered, never forced, and rarely rejected, and that I have been quietly serving my patients in this manner for 2 ½ years.

Alas, this letter didn’t settle the issue. Indeed, the Dental Practice Board ordered Dr Gardner to attend counselling about the dangers of ‘dual relationships’, applying its own Code of Practice on Professional Boundaries, which contains some surprisingly mild guidelines encouraging dentists to think twice about entering into various non-dental relationships with dental clients:

In situations such as these, it is reasonable to think that a person’s professional judgement could be clouded if, for instance, treatment did not go well or if the personal relationship was in some way altered.

Think of the teeth! Dr Gardner didn’t respond well to the counselling suggestion, initially demanding a counsellor who shared his religious beliefs, then issuing ‘unrelated’ demands and, finally, seeking $175,000 compensation from the Board with $7,000 accruing for each additional week. The Board responded by inviting VCAT to determine that this non-compliance with the Board’s order was misconduct.

Dr Gardner relied upon the Charter, especially Charter ss. 14(2) and 15(2):

Dr Gardner claimed that the Boards determination breached the Charter of Human Rights and Responsibilities. It was difficult to follow the way in which the Charter was said to apply in this case. We asked Mr Peter Olney to explain this to us on Dr Gardner’s behalf. It appeared that he relied on the rights to freedom of expression and freedom of religion protected by the Charter. He said that the fact that the Respondent had been required to undergo counselling limited his right to speak with patients about other matters in his surgery. In our view the Charter argument is misconceived. The Charter was not operative at the time of the Panel’s determination.

Even if the Charter did apply, we record our view that the Professional Boundaries document issued by the Board does not appear to contravene any of the terms of the Charter. None of the rights enshrined in the Charter are absolute. Each right must be assessed in context. No dentist has an unfettered right to say what he likes to a patient or to express his religious views to a patient without restriction. The Respondent is obliged to attend for counselling as a condition of the determination that has been made. The requirement imposed by the Board is consistent with the Code of Practice C008 or the Professional Boundaries document. It is not in our view a breach of the Charter. It simply reflects the reasonable limit demonstrably justified by the need for the Board to carry out its statutory role of protection of the public.

The argument is in any event premature, as there have been no restrictions placed on the Respondent during counselling which need to be analysed in accordance with the provisions of the Charter.

Once again, I’m unimpressed.

The responsibilities of appeal judges

Today’s decision in Gassy v R [2008] HCA 3 wasn’t actually about whether Gassy’s trial judge made mistakes or not. Everyone – including, belatedly, the prosecution – agreed that she had. Rather, the question for the High Court – as it often is, these days – is the consequence of those mistakes: does Gassy get a new trial or does his conviction stand, warts and all? Or, to put it another way, what responsibilities do appeal courts have towards defendants whose trial rights have been breached?

This question keeps coming to the High Court, in part because the Court is a de facto appeal court on this appeal-court-specific question, but mainly because of the Court’s complete failure to come up with a workable test for answering this question. The latter is remarkable as the relevant statutory provisions haven’t changed in any significant way in a hundred years. The Gleeson court, despite purporting to settle the whole approach to the interpretation of the statute in 2005, split 2-2-1 in today’s decision.

The great news for Victorians is that the Charter – despite its general impotence when it comes to criminal rights – may well allow Victoria’s courts to find a new – and more certain – path to interpretation, via the Charter’s interpretation mandate:

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

Crucially, appeal decisions – in contrast to many trial decisions – are regulated by a statutory provision. The Victorian provision is this one:

The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Arguably, the High Court’s jurisprudence on Victoria’s appeal provision ceased to apply five months ago. The intersection of the interpretation mandate and appeals is a big question. A really big question. Here are some sketches of three arguments that could be made.

Frankly not bright enough

The other half of Sunday’s Age article on the Charter concerned the prospect of legal confusion caused by the Charter. I think this issue merits much more attention than the usual debates about judicial activisim and dialogues and whatnot.

That being said, I’m sad to see it being raised in this way:

Prosecutors are reluctant to air publicly their concerns about the charter, but one senior prosecutor, who declined to be named, told The Sunday Age the courts would be flooded with litigation that would provide many defence lawyers with “a lifelong right to an income that they probably don’t deserve”. The charter was “an absolute disaster” for the court system and would clog it up for no good reason, the prosecutor said. The traditional system of common law had adequately protected Victorians’ human rights for decades, and the charter’s authors were “frankly not bright enough” to make it watertight.

Hey there ’senior prosecutor’! Why exactly aren’t you willing to go on the record with these comments? If your excuse is to do with the integrity of the Office of Public Prosecution, then why are you willing to lend your title to them, especially the personal insults?

Here’s the way the same point could have been put:

The gap in Charter trial remedies

In two previous posts on R v Rich (Ruling No 2) [2008] VSC 141, I discussed how the Charter’s transitional provision on proceedings prevented the Charter from applying in that case and how Rich was able to rely on the common law to obtain a ruling that Corrections Victoria should pimp up his in-cell computer with the latest software. But there’s an incongruity between these two aspects of the ruling that was briefly addressed by Lasry J. After noting that both sides conceded that Charter s. 49(2) applied to the proceedings (and hence the Charter didn’t), he wrote:

However, that was not quite the end of the matter so far as the accused was concerned. In the written submissions (though not pursued in oral submissions) it was asserted that the Charter applied to Corrections Victoria and has done so since 1 January 2008. It was put that Corrections are acting unlawfully by preventing the accused from properly preparing his trial and instructing his legal representatives, and reliance was placed on s 38.

The concluding submission was that the Charter applied to the accused to the extent that it makes unlawful conduct of public authorities which is incompatible with a human right or failing to give proper consideration to a relevant human right.

I am considering the question of whether or not a temporary stay should be granted in the criminal proceedings brought by the Crown against the accused. The accused has conceded that the Charter does not apply on those issues. I have already made clear that Corrections, although a participant in the proceedings, is not a party against whom I would propose to make any orders and I therefore do not propose to resolve any questions raised under Division 4 of the Charter.

Let’s start with that last paragraph. Given that Lasry J’s ruling was entirely concerned with the conduct of Corrections Victoria (specifically the IT department of the Melbourne Remand Centre), how can he say that his orders were not made against that public authority? The answer reveals a quite fundamental gap in the Charter’s protections for Victorians awaiting criminal charges.

The gap in Charter rights for children

A County Court judge has raised a concern about a gap in the Charter, according to The Age:

A JUDGE fears that protections for young offenders under Victoria’s charter of human rights face possible “destruction” because of frequent delays in the court system. County Court Judge John Barnett said yesterday that delays meant it was common for people to be sentenced as adults for offences committed as youths. He said it was strongly arguable that such situations breached the Charter of Human Rights and Responsibilities.

Judge Barnett yesterday sentenced Brent Carl Ryan, 21, to a community-based order after he pleaded guilty to a charge of affray over an incident in July 2004, when he was 17. Judge Barnett said that Ryan’s case, although promptly investigated, took nearly four years to get to court. As a result, Ryan “lost the opportunity of being sentenced to a youth training centre”. The judge said he was greatly concerned about youth binge drinking, but was more concerned about the “delay of proceedings we are experiencing in this state”.

Although the charter did not exist at the time of Ryan’s offence, and he was then not a “child in the eyes of the law”, the “same cannot be said if a similar case were to arise in the near future”. “When a child loses the right to be sentenced under those procedures that take account of the child’s age and the desirability of promoting the child’s rehabilitation — namely the youth training centre — their rights (under the charter) have been destroyed.”

The judge’s comments appear to raise these provisions of the Charter:

3(1) child means a person under 18 years of age

23(3) A child who has been convicted of an offence must be treated in a way that
is appropriate for his or her age.

25(3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child’s rehabilitation.

A tricky problem in juvenile children’s justice is that being a child is a transient phenomenon. Children age and become adults. When that happens while the criminal justice system is still proceeding, do you treat them according to who they were or who they are?

Charter not applied again!

This Friday’s judgment in R v Rich (Ruling No 2) [2008] VSC 141 is yet another occasion for the Charter to be ignored in a Victorian human rights judgment. Readers of this blog will be familiar with the drill: criminal matter; interlocutory application; passing mention; Charter not applicable; rights claim upheld anyway. But the case does raise a number of interesting issues.

Hugo Alistair Rich has spent the last few years in the Melbourne Remand Centre awaiting his trial on a murder charge associated with an armed robbery in Blackburn North. He has been keeping his jailers busy by litigating over his privileges. He lost his first battle in October last year, when he failed to convince a judge that the withdrawal of his in-cell computer – that’s a location, not a brand – was a breach of Victoria’s vague and convoluted regulations dealing with prisoner ‘privileges’. His second battle – over the removal of a phone number from his list of allowed calls after one of his calls was improperly diverted – surmounted that hurdle, but failed at the factual threshold, after Justice Lex Lasry accepted evidence that he could ring the same person via another (apparently slightly less convenient) number. The decisions noted two further legal options for Rich to pursue his complaints about privileges: by arguing that Corrections Victoria had exercised a statutory discretion in bad faith and to convince his trial judge that his remand conditions meant that his trial would be unfair.

Rich took the second option, arguing before Lasry J – who has drawn the short straw of being his trial judge in the murder trial – that the computer situation (which has evolved somewhat since October) means that he cannot adequately defend himself at his murder trial (originally scheduled for March, but now set for July.) Rich naturally relied on his relevant rights in Charter s. 25(2). However, Corrections Victoria and the OPP argued that Rich was charged too early to have any Charter rights and Rich backed down on that:

In this matter solicitors for the accused had originally sought to contend that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”) had application in this matter. Subsequently both Corrections and the Crown made submissions that the Charter does not apply in these proceedings based on the judgment of King J in R v Williams. Counsel for the accused in their written reply conceded that the Charter does not apply directly as a result of the provisions of s 49(2).

Nothing new there. But the case actually raises a number of interesting issues and I’ll deal with those in several further posts.

Charter applied again!

It’s a sign of the lacklustre start to the Charter that, on the cusp of its fifth month, its stunning news that the Charter’s actually been applied again. I’m actually late to this news, which was reported in the Herald Sun last week. This is the third time the Charter has been applied. The first time was Bongiorno J’s dodgy bail judgment in the Supreme Court in mid-January. The second was a Magistrates’ Court bail judgment a week later. And the third….. another Magistrates’ Court bail judgment. Here’s the article while I try to calm down:

A HUGE court backlog has seen a man accused of belonging to a Mokbel drug cartel freed on bail. Melbourne Magistrates’ Court heard Zlate Cvetanovski, 41, was unlikely to face trial until well into 2010, more than two years after his arrest by Purana Taskforce detectives. Mr Cvetanovski is accused of being an apprentice amphetamines cook in Tony Mokbel’s drug syndicate and of trafficking a large commercial quantity of methylamphetamine between June 2005 and April 2006. Police allege he was paid $200,000 to help manufacture amphetamines at a secret lab and that he had links to members of the Mokbel family. He is also charged with dealing with $72,175 in cash, alleged to be proceeds of crime. The court heard he was on bail for unrelated matters when arrested on returning from a gambling trip in Sydney last week.

Magistrate Peter Couzens said higher courts and the new Charter of Human Rights made it clear that defendants were entitled to have their cases heard without delay. A check by the prosecution with the County Court — where the case will be heard if Mr Cvetanovski is ordered to stand trial — indicated it would not be listed for at least two years from the time of his arrest. “By anyone’s standards, that type of delay is totally unacceptable,” Mr Couzens said. Defence lawyer Damian Sheales told the court that his own experience of delays at the County Court included a day where there were 19 trials awaiting judges. The magistrate said that had the case against Mr Cvetanovski been overwhelming, he may have denied bail in spite of the delay. But there were no fingerprints tying him to the drug laboratory, and the case relied heavily on the evidence of informers who were themselves drug traffickers, he said. Mr Couzens granted Mr Cvetanovski, of Avondale Heights, $350,000 bail, with conditions. He is due to return to court in July.

The magistrate seems to have applied Charter s. 25(2)(c):

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees-

…

(c) to be tried without unreasonable delay…

(Again, Charter s.21(5)(b) could scarcely be relied upon, given that Cvetanovski has been on remand for all of one week!)

However, as previously discussed, the mere fact that a defendant has been denied an ‘entitlement’ doesn’t mean that any rights have been breached or that he gets a remedy. Here’s the run-down: