New Year’s Eve resolutions

And now it’s time for a Charter dodge of my own. After one year, 289 posts and 375,000 or so words, this is the end of Charterblog. The site and archive will remain, but there’ll be no more posts from me.  [EDIT: OK, I'll write an 'About this blog' post at some point for folks from the future who want to dig up a time capsule from 2008.]

Why stop now?  I made the decision to stop the blog today back in around July.  Charterblog is, as readers will well know, a very intensive blog . I’ve managed it so far, but I’ve long known that it isn’t sustainable (especially for someone with two regular jobs.) My options were either to make the blog less intense or to make it finite. I didn’t hesitate in choosing the latter. Better an intense, temporary blog, than a perpetual and lame series of links,  one-liners and the odd meaningful post. A year-long blog makes aesthetic sense and matches the year-by-year nature of the Charter’s development too.

As well, 2009 is a big year for me in my academic job: three books (on criminal process, evidence, and substantive criminal law) to write or co-write, as well as a new criminal law course to develop (in the Melboune JD, ditching homicide, theft and rape completely in favour of covering the thousands of more routine offences.) Fortunately for me, all these projects have a significant human rights component, so I won’t be going cold turkey on the Charter. Finally, recently, it’s become clear that it’s probably too early for a perpetual blog charting the development of Charter jurisprudence, as the pace of that development (if, indeed, it is happening at all) is too glacial to sustain a case-by-case analysis.  The result is too many frustrated posts that begin ‘Yet again…’. If I kept this up, I might become jaded!

Thanks are due to a couple of people in particular. First, to my long-suffering partner Denise, who has put up with me hogging the MacBook, staying up late typing and, no doubt, muttering in my sleep about Charter s. 6(2)(b). She would have been well within her rights to issue all sorts of ultimatums, but she didn’t. I don’t deserve her. Second, to both my employers. Blogging carries no cred with DEST and even the folks at Melbourne Uni who defined ‘knowledge transfer’ can’t seem to get their heads around the concept. And my particular blogging style and views bring political risks, not only for SARC but (as it turns out) for Melbourne Law School too. I’m fortunate indeed that neither has raised the slightest objection. That’s quite appropriate, of course, given Charter s. 15, but it’s also courageous, especially when there’s a bully on the block. Finally, thanks to the community of readers for the comments, links, heads-ups and encouragement.

Quitting the blog feels a little like giving up a baby. I can’t recommend blogging highly enough to any academic whose field includes regular contemporary developments. A commitment to regular, public and comprehensive commentary forces an engagement with the subject-matter that exceeds any other academic endeavour, even a PhD. And the informality of blogging is a perfect antidote to the jargon and circuitous nature of formal academic discourse, not to mention the obsequiousness and pomposity of the law.  I imagine that I’ll return to blogging (or whatever its equivalent will be then) in the long-term, maybe even about the Charter (though only if the jurisprudence matures a whole lot.)

But in the short term, it’ll be very weird not posting about all the coming judgments: Bongiorno’s challenge, the FOI challenge, the taxi driver appeal, Hinch’s challenge, the mental health appeal (although the revelation that the plaintiff in that case is named Kracke posed a challenge of its own to my unfortunate tendency to pun that I could not possibly have resisted.) And whatever happenned to the ‘nameless teen’s’ child porn charge? (Seriously, could someone tell me?) There’s also the ACT’s new conduct mandate, which starts in, oh, 75 minutes or so. (I originally planned to make Charterblog subject to the ACTHRA on 1/1/9!) And, there’s the federal consultation too. Still, if a blog is finite, then it has to stop sometime and that time… is… now.

It wasn’t tomorrow!

Why do I make predictions? Here it is:

As we have said, our conclusion about the meaning of the word ‘likely’ in s 11(1) is arrived at by the application of ordinary principles of statutory interpretation, in particular the common law rule favouring that interpretation which least encroaches on individual freedom. That choice of meanings having been resolved, the interpretive task does not attract the operation of s 32(1) of the Charter, which provides: 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.

The Charter has missed out on yet another day in the sun. They dodged it! They dodged it!!!!! We are the ACT….

Well, almost. Justice Nettle, god bless him, actually applied the Charter to reach the same conclusion that the majority reached. We have one third of an authorative judgment. Good one. Though I will presumably change my mind once I read it.

For those who care, RJE is free of his ESO, while ARM remains subject to his. However, as a bonus, ARM got a suppression order and we got a passing mention of the Charter. And Tate’s argument about the meaning of ‘likely’ was firmly trounced.

Obviously, I’ll have more to say eventually…

It’s tomorrow

Thursday December 18th, a very big day for the Charter:

SUPREME COURT LIST FOR THURSDAY 18 DECEMBER 2008
http://www.supremecourt.vic.gov.au

C O U R T O F A P P E A L
===============================

CRIMINAL DIVISION
—————–

The President, Justice Nettle, Justice Redlich
Blue Court, Second Floor, 459 Lonsdale St, Melb.
9:30 – DPP v. Simon Vucko (For Judgment)

Justice Vincent, Justice Weinberg, Justice Robson
Green Court, Ground Floor, 459 Lonsdale St, Melb.
9:30 – R v. Kevin John Dickson (For Judgment)

Justice Buchanan, Justice Vincent, Justice Robson
Green Court, Ground Floor, 459 Lonsdale St, Melb.
9:45 – R v. CP (For Judgment)

The President, Justice Nettle, Justice Weinberg
Green Court, Ground Floor, 459 Lonsdale St, Melb.
10:00 – R v. Vipulkumar Gajjar (For Judgment)
10:00 – Cwlth DPP v. Daniel Hizhnikov (For Judgment)
11:00 – RJE v. Secretary to the Department of Justice (For Judgment)
11:00 – ARM v. Secretary to the Department of Justice (For Judgment)

There’s a stack of judgments due tomorrow, but all Charter eyes will be on RJE & ARM aka the sex fiends’ challenge. Stand by for (a) hopefully a major Charter analysis by the Court of Appeal, surely the most authorative judgment to date; (b) inevitably, some big big headlines in the Hun; (c) some tough choices for Rob Hulls. Unlike the taxi driver affair, he should be well briefed and ready to act on this one. But which statute will he be out defending?

Bell’s Charter

Today’s surprise announcement of Kirby’s replacement on the High Court had two immediate reactions from me: (1) McClelland went for a NSW judge who isn’t Basten?; and (2) why does her name ring a bell?

I am pleased to announce that the Government has decided to recommend to Her Excellency the Governor-General the appointment of Justice Virginia Margaret Bell as a Justice of the High Court of Australia, with effect from 3 February 2009. Justice Bell will be the 48th person, and the fourth woman, appointed to the High Court since Federation. Her Honour’s appointment will follow the retirement of the Honourable Justice Michael Kirby AC CMG after 13 years of outstanding service to Australia’s highest court.

Justice Bell is currently a Judge of Appeal of the NSW Supreme Court. Beginning her legal career at the Redfern Legal Centre in 1978, Justice Bell practised as a lawyer for over 20 years before being appointed a Judge of the NSW Supreme Court in 1999. Her Honour’s time in practice included service as a Public Defender, as Counsel Assisting the Royal Commission into the NSW Police Service, and as a part-time Commissioner of the NSW Law Reform Commission. Most recently Her Honour has also served as President of the Australasian Institute of Judicial Administration.

Ho ho. But I’m not kidding, as she actually has a significant Charter link. Indeed, she’s the first and (putting aside other judgements referring to her judgment) only non-Victoria judge to have mentioned Victoria’s Charter in a judgment to date. (As it happens, the other non-Victorian who came closest was he judge Bell is replacing, but he only did it second-hand, by citing an article by Evans and Evans.)

Her Charter moment is one I’ve covered on this blog before, in the context of critiquing passing mentions. The first and worst such mention was Callaway’s citation of Charter s. 7(2) as a reason to construe Victoria’s Serious Sex Offenders Monitoring Act (where the ‘monitoring’ can include requiring someone to ‘reside’ in the grounds of a prison) narrowly, simply because it reveals Victoria to be a glorious liberal democracy. This pointless Charter reference led NSW courts, at first, to refuse to follow Victoria’s Court of Appeal when it came to construing NSW’s similar (but slightly more draconian) legislation. And the judge who took that step was Bell:

In TSL the Court took into account the provisions of s 7(2) of the Charter of Human Rights and Responsibilities, observing that “The Charter of Human Rights and Responsibilities 2006 (Vic) is not yet in force, but the nature of our society is a legitimate factor to take into account in construing the legislation.” (footnote [15].) In this respect it seems to me that the plaintiff’s submission that s 17(3) of the Act should be construed in accordance with its terms and not by reference to the approach taken to the Victorian Monitoring Act has force.

I have to say that I don’t think much of this argument for not following the Victorian precedent (and nor, it seems, did the Court of Appeal.) But I think there are some quite positive spins to draw from this in terms of Bell and the Charter.

First, it arguably might signal her view that – unlike most Victorian judges – Bell does think the Charter is transformative, to the point that Victoria’s legal system should diverge more and more from the rest of the country (except the ACT.) That’s surely a good thing and, I suspect, one that will contrast with the Howard clones and Gummow.

Second, and more likely, it probably signals her distaste for the quite mild and garbled formulation that Callaway came up with after his pointless Charter mention. Recall that the NSWCA opted for comity with Victoria despite its preference for a standard that was much tougher than Callaway’s, equating the term ‘likely’ with ‘more likely than not’. Bell had adopted that standard in her judgment. And, as it happens, that’s exactly the standard that the Victorian Court of Appeal might adopt, applying the Charter, in the sex offenders’ challenge.

And that makes Bell’s appointment timely indeed, because that challenge is likely to be the first Charter case that makes it to the High Court. (Both parties, or at least both interveners, would be sure to appeal. The only thing that would stop the case reaching the Court is if the Court bizarrely rejects special leave or the Victorian government renders the matter moot by passing new, clearer legislation, though that would invite a further Charter challenge.) So, it’s pretty clear what standard Bell would opt for, Charter or not. Lucky that, as a NSW judge, she wouldn’t have to recuse herself from a case on a Victorian statute.

More broadly, this signals the main joy of Bell:

A Frank consultation

Oh, I’m very happy.  Not that I thought of this criterion in advance – in part because it never occured to me that it would be met – but who could be more ideal as head of the federal charter (oops, human rights) consultation but a Victorian who isn’t a Charter groupy  It’s the perfect mix of experience and independence. And his non-groupiness isn’t based on under-the-radar politicking, but simply some outspoken views about how rights should work that doesn’t fit the usual line.

[EDIT: Victorian? Nope. Why don't I check these things? He's based at ACU's North Sydney campus, not its Melbourne one. Still, he's clearly engaged with events in Victoria. Thanks to Andrew Bartlett for pulling me up.] [DOUBLE-EDIT: But, now I look at it, his phone numbers are Victorian! Or is that just the phone number of the ACU's Institute of Legal Studies Fitzroy campus? His various degrees are spread along all the Eastern states.]

Most obviously (to me anyway) is his contribution to the major political debate on the Charter to date: the abortion bill, its non-conscience clause and Charter s. 48:

The Williams committee stressed that such a provision was ‘not intended to make a statement on when life begins. That question has significant moral and scientific aspects and is not a question that the Charter seeks to answer. Indeed, the key reason for including this clause is to ensure that an outcome is not imposed by the Charter, but is left to political debate and individual judgement.’

They made what must now be seen by their political masters to be a remarkably misconceived observation: ‘In coming to this view, we emphasise that the Charter will expressly preserve all other rights, including any rights that the law gives to the unborn child in other statutes and the common law.’

Unless the Victorian upper house acts to amend those provisions of the bill which presently negate the freedom of thought, conscience, religion and belief of health professionals, the matter will need to be resolved by the courts.

Meanwhile the Catholic hospitals and conscientious health professionals opposed to abortion on demand are well justified in taking their stand against an unjust law which carries the hallmarks of totalitarianism. Any self-respecting civil libertarian should support them, regardless of their views on the morality of abortion on demand.

Some of the details are inaccurate, but the basic point is a suspicion of the human rights movement as engaged in preferential treatment of some pet issues and the adoption of political exemptions that is both miserly and misguided. I can’t see him backing the kind of cherry-picked and manipulatable Charter that the good folks on the  Victorian commmittee produced.

But he also has a fine ear to the costs of a rights-free system:

Without an overriding bill of rights, the judge does not have guidance from the legislature or the people about the priority of individual liberty and the common good to be applied to particular statutes or to discrete situations calling for a development of the common law. Without recourse to a bill of rights, the judge who has taken the oath to administer justice according to law must define the jurisdiction of the court and interpret the law without the benefit of a prior comprehensive, legislative endorsement of a hierarchy of rights and interests. The judge must find his way through an increasingly complex thicket of legislation which is not subject to any overriding codified set of rights and she must develop the common law where statute is silent with less assistance from judges from other jurisdictions whose decisions are increasingly guided by their own bills of rights.

That is, of course, the right answer to James Allan’s argument that rights turn judges into dictators. They are already dictators in the present system; a rights bill would at least give judges more scope for looking for some underlying values than common law history and the mysteries of local statutory interpretation.

How Brennan will walk the line between these two concerns remains to be seen, but I’ve no doubt that these are the key issues at stake in the rights consultation. As for the remainder of the Committee, I don’t know much about Tammy Williams, Mary Kostakidis or Mick Palmer, but the latter’s presence may offset a major problem with the Victorian one: an apparent lack of experience, attention or knowledge about what is likely to be the major area of effect of any rights law: criminal justice.

But what about the other components of today’s announcement: the terms of reference, the background paper, the Committee’s role, the support staff and timelines?:

The Federal Charter consultation

… will be announced sometime around 7pm tonight:

ATTORNEY-GENERAL TO DELIVER INAUGURAL EVATT ANNUAL LECTURE

Attorney-General Robert McClelland will today deliver the inaugural Evatt Annual Lecture to commemorate the 60th Anniversary of the Universal Declaration of Human Rights. Highly-respected Labor Statesman Dr H V (Doc) Evatt was President of the United Nations General Assembly when the Declaration was first adopted by 47 countries, including Australia.

DATE: Tuesday, 9 December 2008.

TIME: 6:30 pm

LOCATION: Eastern Avenue Auditorium, Eastern Avenue, Camperdown Campus, University of Sydney.

Not that I have the slighest insider knowledge… [EDIT: And, if any proof was needed of that, here it is:

26. And so, tomorrow, on the 60th anniversary of the Universal Declaration of Human Rights, I will launch a national consultation on the protection and promotion of human rights and responsibilities in this country.

27. Our consultation will do far more than honour an election commitment.  It will provide all Australians a chance to have their say. To have their say about the kind of rights and responsibilities that ought to be protected and how we can better protect and promote those rights and responsibilities now and into the future.

28. The consultation will take the form of a broad based nationwide consultation conducted by a committee of four eminent Australians. I will announce their names tomorrow.

29. The consultation isn't just about whether we should or shouldn't have charter of rights. In fact, judging by some of the contributions to the debate so far, I expect there will be robust discussion on a broad range of possibilities. Some will be in favour of change. Some will be in favour of the status quo. Some will suggest other enhancements.

30. Whatever views are out there, I think it's paramount that the consultation hears from as many Australians as possible, with attitudes and views right across the country and right across the spectrum.

OK, there was an announcement of the announcement at 7pm tonight. The main reveal is that the Federal Human Rights Consultation Committee will consist of 'four eminent Australians'. Well, that certainly follows the script.

But who will the four be?: Ca-thy, Ca-thy, Ca-thy....]

The Charter in passing

After midday on 22nd February 2006, four or so months before the Charter was enacted, Peter Kokkios took a walk through Richmond’s public housing estate, not far from where I live. He was approached by a short skinny man and a tall fat one – that rules me out! – who asked him for a cigarette. When Kokkios said no, the next request was for his $1800(!) Tag Heuer watch, a request backed up by a syringe produced by the skinny guy. After taking a further $50 from Kokkios’s pocket, they ran off, with the taller one shouting ‘Come on Ant!’. Who was this ‘Ant’?

Mr Kokkios recalled that the skinny man had bloodshot and baggy eyes along with bad skin and bad breath. Mr Kokkis recalled that he was about 5 feet 10 inches tall and his hair, which was slicked or combed back, was black. He recalled that the skinny man looked European – Italian or Greek – was clean shaven, had brown eyes, a very long and skinny face and was approximately 20 to 25 years old. He recalled that he was wearing a red top and black ‘parachute’ tracksuit pants and a red T-shirt.

The next day, Kokkios identified Antonio Falcone from a photoboard. Falcone’s alibi wasn’t the best. He said that he went with his mum to the Commonwealth bank on nearby Bridge Road to get some money out, but left empty-handed when it turned out his account was in the red. A computer record showed that his discussion with the bank happened at 11.40AM. The disappointed pair went home. A couple of hours later, Falcone pawned some of Mrs Falcone’s jewelry. He denied having entered the housing estate that or wearing red or black clothing.

At Falcone’s trial for armed robbery, late last year, the deliberating jury had the following question for the trial judge:

If we find that we can place him at the scene, but believe he is not the man with the syringe, can we still find him guilty?

The jury’s question probably arose because of the account of Raglus, another possible eyewitness, who said he saw two men eyeing off a flash car near the housing estate close to midday. The witness also identified Falcone from a photoboard, but said that it was the other taller guy who was wearing red and black. After consulting both counsel, the trial judge responded:

If you find that the accused man wasn’t the one with the syringe, then you must have a reasonable doubt about the identification made by Mr Kokkios as identifying this accused man because he gives no description of Man No. 2 other than broader and bigger than Man No. 1. So if you were to reach this position then you must look at what’s left before you in the case and that’s the evidence of Scott Raglus and what you make of that, the evidence of Mr Trojan the man at the bank and what you make of that, the evidence of Mr Falcone and Detective Senior Constable Roberts and finally what the accused man had to say during his interview with the police. So that’s how I’m going to answer your question and I’ll otherwise ask you to return to the jury room and if there’s anything else that I can assist you with, please let me know

I’m not convinced that this is actually what the jury wanted to know. This account is directed to whether or not the evidence could support a finding that Falcone was the other man. But I suspect that what the jury really wanted to know was whether you could still be guilty of armed robbery even if you weren’t the one carrying the syringe. Because of the doctrine of ‘acting in concert’, the answer is, almost certainly, yes, as the trial judge had earlier directed them. Three days later, the jury convicted Falcone of armed robbery. In R v Falcone [2008] VSC 225, the Court of Appeal overturned Falcone’s conviction and ordered a new trial. The reason was that the Crown’s sole theory presented in the trial was that Falcone was the guy with the syringe. Australia’s common law doesn’t allow a new factual theory to be introduced without the defendant having a chance to respond. So, the trial judge should, instead, have answered ‘no’. 

This mundane, if somewhat depressing, procedural error yielded the following Charter remark from Vickery J, writing the judgment for the court:

The right to a fair trial is an essential safeguard of the liberty of the individual under the law. It finds expression in Article 14 of the International Covenant on Civil and Political Rights 1966 and is reinforced by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

This is a ‘passing mention’. I complained about this practice back in February, during the (in hindsight) happy era when the Supreme Court’s jurisprudence was characterised by feel-good vagueness, rather than the misreadings and lousy analysis that soon rose to the fore. It is to be distinguished from both the outright sloppiness of approaches like Bongiorno’s and Lasry’s (amongst other reasons, because the Charter wasn’t applicable in Falcone’s case due to Charter s. 49(2)) and also the helpful approach of Neave and Warren (who mentioned the Charter to indicate what difference it may make in the future.) Rather, Vickery’s approach is similar to the dull jurisprudence of the ACT Supreme Court on its HRA, where the Charter is seen as, in some vague and unimportant way, restating the existing law. It’s worth recalling why this is a lousy practice.

The hidden dialogue on parole

Last April, SARC, reporting on the Justice Legislation Amendment Bill 2008 (which extended the ESO scheme), wrote to the Corrections Minister asking about the exemption (given the broad rights-limiting powers the Adult Parole Board can exercise) and received these responses a month later:

5. Why is the Adult Parole Board exempted from the obligation to act compatibly with human rights and to consider relevant human rights when making decisions under s16(2)? The Government decided to make the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 to exempt the APB and the Youth Parole Board from the Charter for a period of a year in order to allow the review of the impact of the Charter on these bodies’ work; and to consider the resources that would be required to ensure their compliance with the Charter.

6. Will the exemption in the Charter of Human Rights and Responsibilities (Public Authorities) (Interim) Regulations 2007 be renewed in 2009? The work referred to above is still underway and a decision will be made before the regulations expire on 31 December 2008.

Not exactly chatty, hey?  I’ve complained previously in this blog (and elsewhere) about the silent ‘human rights dialogue’ – more correctly a ‘no human rights dialogue’ – that led to the exemption of Victoria’s three parole boards from the Charter’s obligations mandate late last year. One of the few negative comments in VEOHRC’s report card on the Charter was to make a similar complaint. The only significant public comment on this exemption is Hulls’s response to a parliamentary committee in June this year, comments that led me to wonder whether the parole boards’ concerns were based on some shonky comparative legal analysis.

I had, though, been hoping that the recently tabled Annual Report of the Adult Parole Board would be illuminating on these matters. Other reports by public authorities typically include some proud detail on how they are working to comply with the Charter. But, now that the report is available online, the only mention of the Charter is in the opening ‘message’ by Chairperson Justice Simon Whelan. (Murray Kellam, it turns out, quit in September 2007, before the exemption was enacted. Kellam was part of the court in the Court of Appeal’s human rights lowpoint to date, its Underbelly judgment. But Whelan, like most of the judges, has also had his chance to give short shrift to the Charter this year. Interestingly, his contribution was to tell off another public authority, the Registrar of Titles, for trying to comply with its obligations mandate in a dispute between two companies.)

Anyway, here’s what Whelan had to say about the Charter and parole:

The Board is currently exempt from compliance with the Charter of Human Rights and Responsibilities. The Board’s view is that this exemption, which presently expires at the end of this calendar year, was a prudent and responsible step taken by the government. There are, in the Board’s view, compelling reasons for the exemption. The Department of Justice is currently reviewing the issue and the Board is working with officers of the Department in that review. The Board is confident that there will be a satisfactory outcome which will ensure that important features of the Board’s practices are preserved.

Oops. He forgot to add ‘and ensure that Parliament’s objective of promoting all human rights, including those of prisoners, parolees, victims and other stake-holders in the parole systemn, are met’ a the end there. But I’m sure that’s implicit. Alas, also left implicit and mysterious are the reasons why the exemption was ‘prudent and responsible’ (responsible?) and what those ‘compelling reasons’ are.

Charter of frights

Marlin: I promised I’d never let anything happen to him.
Dory: Hmm. That’s a funny thing to promise.
Marlin: What?
Dory: Well, you can’t never let anything happen to him. Then nothing would ever happen to him. Not much fun for little Harpo.

Australian Policy Online’s new webazine, Inside Story, has a piece by me on the Charter, covering similar ground to my October conference paper, but with lots more on poor old Justice Cosgrove and coverage of more recent Charter developments. (Subscribe to their e-mail newsletter to potentially win a $250 book voucher from Readings!)

The title of my article – an obvious pun but not all that prevalent – probably won’t endear me to the human rights lobby. But, as those who actually listened to my conference speech would well know, there are two sorts of frights I’m referring to: fear of the Charter, and fear of that very fear. it’s the latter that I think bedevils Victoria’s Charter and has led to some unfortunate gaps in its drafting and operation. Funny how some folk think that that’s an anti-Charter argument, or even an anti-human-rights one. The movement in favour of human rights charters is, I think, a lot bigger than the Charter and those who drafted it and are involved in its implementation. The latter group need to let their baby grow up. The above Finding Nemo quote about an overprotective father didn’t make the cut at Inside Story. It’s tricky, in human rights essays, to avoid an ending that is either too smug or too glib.

Reporting season

Yesterday’s press was full of weird complaints about an avalanche of 300 annual reports, which supposedly should have been spread out over weeks to faciliate media reporting. I don’t get this: they’re annual reports (in this case, all for the last financial year) so of course they come out more or less the same time. Anyway, why can’t the media just maintain its interest for longer than a one-day news cycle? There are two bigger issues for me: First, why do they stay confidential until tabled in Parliament? All this tabling is just a pointles formality, isn’t it? Why not report directly to the public? And, second, why doesn’t tabling translate directly into accessibility? Why doesn’t parliament post these directly on its webite (e.g. table.parliament.vic.gov.au?) While the media supposedly got their hardcopies from a little table in a hallway in Parliament, everyone else will have to twiddle their thumbs until each individual authority posts theirs on their website.

The Charter interest in these reports are that they are virtually all reports by public authorities, so there should be details of their Charter compliance. Here’s a few reports that that (in some cases, reportedly) have some interesting Charter tidbits:

• Community Visitors Annual Report 2007-2008: The Age reports that this report alleges a mass breach of the Charter rights of some disabled people to freedom of movement and to liberty, by virtue of their continued detention in psychiatric facilities simply because more suitable voluntary facilities are not available. The report specifically considers Charter s. 7(2) and argues, bodly but convincingly, that lack of resources cannot be a reasonable limit in such circumstances. A neat example of the socio-ecomonic implications of civil and political rights. Alas, at present, the report isn’t on the Office of Public Advocacy’s website.

• Adult Parole Board Annual Report 2007-2008: The Herald Sun reports that the Justice Simon Whelan, the Board’s Chair – what happened to Murray Kellam? – believes that there are ‘compelling reasons for a continuation of its exemption from compliance with the Charter of Human Rights and Responsibilities’. I look forward to reading the first every public account of those compelling reasons, once the Report appears at the Board’s website. Next week, I’m told.

• Judicial College of Victoria Annual Report 2007-2008: I was expecting this report to be full of information about the JCV’s massive Charter judicial education programme, which has been such a success so far. Alas, there’s only a mention of the Judicial Officers Informaiton Network’s ‘human rights practice page’, which ‘continues to grown as the jurisprduence in this area starts to develop’. I wonder if it gets the date right for Charter s. 49(2)?

• Office of Public Prosecutions Annual Report 2007-2008: This report, available here, contains a special coloured page on human rights. It outlines the non-application of the Charter in the Underbelly case and also the Court of Appeal’s appalling dicta dismissing the Canadian Supreme Court’s view on suppression orders in a throwaway line. (Elsewhere Rapke signals that he wants few suppression orders in future, dismissing the recent rise as a consequence of the gangland murder trials.)

More interesting is a report of a unpublished bail matter:

The applicant Mr B was charged with conspiracy to traffic a commercial quantity of drugs and was required to show exceptional circumstances in order to be granted bail. During the final submissions, the defence raised the issue of delay, stating that the rial was likely to be delayed for two years. As a result, the Charter of Human Rights and Responsibilities and the recent judgment of Bongiorno J in the application of Kelly Michael Gray [2008] VSC 4 were discussed. The DPP submitted that the application should be distinguished on the basis that whilst Bongiorno J accepted that Gray may well have remained in custody for a period in excess of his probable sentence, Mr B was likely to be sentenced to a term of imprisonment well in excess of any potential period of remand. The Magistrate ruled that whilst Mr B had demonstrated exceptional circumstances and that the likely delay would be inordinate, the risks of his re-offending and/or fleeing were unacceptable and could not be alleviated by strict conditions. Accordingly, bail was refused.

A pity these decisions aren’t published, hey?

• VEOHRC’s Annual Report 2007-2008: This report was online yesterday arvo. Good show, VEOHRC! It reveals:

• confirmation that the Commission only intervened in one matter in the Charter’s first six months, the Mirik case, thus casting some doubt on the necessity for Charter s. 35 notices, at least in matters where the state of Victoria is a party (and hence the notice is only for the Commission’s benefit.)

• inquiries about the Chater doubled this financial year compared to last one (which straddled the Charter’s commencment date), from 49 to 95 inquiries. But who knows what they were about?

• the Commission handed out six $5000 grants (from 64 applications) to promote awareness of the Charter. The lucky winners: a mental health seminar, a Charter ESL curriculum, short drama shows for kids (where can I see those? And do they cover Charter s. 38(2)?), young person’ creative responses to the Charter through film, music and design (ditto), a DVD for the disabled and some FRED-focused community service announcements on radio. (“Attention. As of 1/1/7, all listeners have freedom, respect, equality and dignity. Unless you are involved in a proceeding that commenced before 1/1/7.”)

• Most interesting of all, there’s an account of this below-the-radar Charter involvement in an EOA exemption matter:

In the pipeline

A VGSO seminar today on ‘The Charter’s first six months’ (of full operation) actually spent more time on its second six months. The panel consisted of Vic S-G Pamela Tate, special counsel for HR Joanna Davidson and head of the DoJ’s HR Unit, Catherine Dixon. The session opened with the news that Dixon will be shifting to VGSO on December 10th. (Isn’t that Human Rights Day?)

In the main session, Tate described Sabet and Dixon outlined the HR Unit’s work, but it was Davidson’s comments (both opening and in response to questions) that were the most interesting, particularly in describing the following Charter litigation that falls below Austlii’s and the newspapers’ (and therefore my) radar:

• At some point, the Magistrates Court has heard and rejected an application for a stay of a proceeding based on the Charter’s right to a trial without unreasonable delay. A pity that this one isn’t on the record.

• Also, it seems, the Magistrates Court has reverted back to ‘applying the Bail Act‘ after a brief period of following Bongiorno J’s pronouncement in Gray v DPP. Bongiorno’s comments paid too little attention to the Charter to be a stayer, but it’s a bit disturbing that the Magistrates Court can just decide to ignore a Supreme Court precedent. Again, a pity these things aren’t on the record.

• The VCAT hearing reviewing the Mental Health Review Board’s major Charter decision is set down for a week in November. I seem to recall Davidson saying at the Melbourne Law School conference that there was an earlier hearing on the transitional issues. So, does that mean that the transition issues were rejected, sidestepped or postponed?

• VCAT also has another Charter case concerning the interpretation of the Freedom of Information Act‘s public interest exception in light of the Charter’s right to freedom of expression (including the right to seek and impart information.) The A-G, intervening, will argue that the right to seek information only covers willing imparters. In this case, the imparter, Victoria Police, a public authority, isn’t willing. The case will be heard in December.

• The Charter is also apparently being raised by Trevor Flugge (pictured), another notorious Australian adding his name to the select list of early Charter claimaints. Flugge, ex-director of the Australian Wheat Board, is the subject of an action by ASIC for breaches of directorial duties in relation to the Boards dealings with ex-Iraqi president, Saddam Hussein. The action commenced just before Christmas last year, much like BAE’s EOA exemption application that somehow managed to avoid the Charter. But ASIC hardly needs to worry about the Charter.  The proceedings against Flugge are brought under federal law pursued by federal agencies. The only apparent Charter link is that the proceedings are in Victoria’s Supreme Court, but it is only bound by the Charter in its administrative capacities. I’d hold on to that gun, Trevor.

So, some interesting cases on the way, but alas no judgments likely this year. Unsurprisingly, the panel was unfailingly upbeat about the Charter’s implemtation by Victoria’s courts and tribunals, with Tate lauding the gratifying experience of airing human rights issues in Sabet and noting the positive comments HRLRC director Phil Lynch made about the courts’ non-application of the Charter in his own ‘first six months’ report card.

Questions from the audience almost entirely came from Victoria Police and VCAT employees. Davidson calmed the former with some hair-raising stories of non-torture cases from New Zealand, while Tate re-assured the latter that all the confusion about Charter s. 4(1)(j) will be resolved by sufficient contemplation of the High Court’s illuminating separation of powers jurisprudence.

The Charter and committals

Tony Mokbel, perhaps alone amongst the alleged gangsters from Victoria’s underbelly, will have at least some of his charges resolved in proceedings governed by the Charter, assuming the judges running his case get the date right in Charter s. 49(2):

[I]n February and March 2006, the plaintiff was tried in the Supreme Court on one count of importation into Australia of a prohibited import, namely cocaine, in November 2000, contrary to s 233B(1)(d) of the Customs Act 1901. After the conclusion of evidence, and during the Crown Prosecutor’s address, the accused absconded while still on bail….

Between 27 February 2007 and 20 June 2007, Victoria Police filed in the Magistrates’ Court a further 15 charges against the plaintiff. Those charges included two charges of murder and five charges of trafficking in a large commercial quantity of a drug of dependence. The plaintiff was arrested in Greece on 5 June 2007.

However, Mokbel’s attempt to head-off his coming criminal trials failed yesterday.  In Mokbel v DPP (Vic) & Ors [2008] VSC 433, Justice Stephen Kaye knocked back an application for a stay based on Mokbel’s extradition occurring while his action before the European Court of Human Rights resisting the extradition was unresolved.  Presumably, Mokbel’s Charter action would have been based on his lawyer Mirko Bagaric’s argument that pre-trial publicity means that he cannot have a fair trial.  The ruling didn’t discuss the Charter, but Kaye’s rulings carry mixed news for any furture reliance on the Charter’s fair hearing right.

Kaye’s main holding was that the remedy of a stay for abuse of process is not available for committals. One of the two lynch-pins of his decision is good news for criminal defendans wishing to raise the Charter:

It is useful to commence with the appropriate characterisation of committal proceedings. In Phelan v Allen, the Full Court held that a stipendiary magistrate, in a committal proceeding, exercises a ministerial, and not judicial function, and accordingly an order by him striking out the information and discharging the defendant might not be the subject of judicial review under s 155(1) of the Justices Act 1958. In Grassby v R, the High Court held that a magistrate does not have power to stay committal proceedings as an abuse of process. In reaching that conclusion, Dawson J (with whom Mason CJ and Brennan, Deane and Toohey JJ agreed) recognised that it had been “consistently held” that committal proceedings do not constitute a judicial inquiry, but “ … are conducted in the exercise of an executive or ministerial function”. As such, the role of a magistrate or justice in holding a committal is essentially inquisitorial and administrative. Finally, in Potter v Tural; Campbell v Bah, two defendants sought judicial review of the decision of the magistrate refusing leave to cross-examine certain witnesses in the course of criminal proceedings against them. On review, the primary judge quashed the decisions of the magistrate. That decision was reversed by the Court of Appeal. Batt JA (with whom Tadgell and Callaway JJA agreed) commenced his reasons by stating: “It is established by a long line of authority in Victoria that a magistrate’s order committing for trial or refusing to commit is ministerial and not judicial and also is not amenable either to certiorari … or to appeal under statutory appeal procedures replacing certiorari.”

So, committals aren’t judicial, but are rather ‘ministerial’. Kaye distinguished UK committals on the ground that they determine whether or not charges will go ahead; Australian committals, by contrast, are neither here nor there: an Australian prosecutor can ignore both a positive ruling at a committal (by entering a nolle prosequi) or a negative one (by commencing anex officio indictment.) The point of Australian committals is a bit of a mystery, and they are mostly justified by the opportunity they give defendants for discovery of the case against them.

This issue is relevant to Charter matters, because of the dreaded Charter s. 4(1)(j) partial exemption for courts and tribunals from the conduct mandate:

4(1) For the purposes of this Charter, a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity;…

Note Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.

Doubtless, the combination of these rulings and the note to Charter s. 4(1)(j) will be taken to have basically settled the matter. And that’s basically a good thing, as the Charter s. 4(1)(j) is stupid anyway. But I think that there is still room for doubt.

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.

Some conference papers

The Protecting Human Rights Conference at Melbourne Law School (and jointly run by Mel/ANU/UNSW) has quietly launched its promised webpage of conference papers (with the quiet presumably due to the fact that a number of the papers are ‘coming soon’.) Here’s the site.

For now, you can link to the following:

• Rob McClelland’s opening address (with its notably absent announcement of the federal charter consultation)
• Ed Santow’s short paper on what’s going on outside of the ACT and Victoria in terms of charters: happening federally, more hopeful than they used to be in Tasmania, less hopeful than they used to be in WA, about as hopeful as always elsewhere, with the caveat that the federal charter may be slowing things elsewhere.
• A link to Lord Sedley’s London Review of Books paper (which turns out to be what he read to us on DVD.) The full read is for subscribers only or for purchase! I’d gripe about that, but the conference was very competitively priced. 
• Debbie Mortimer’s comprehensive powerpoints on Charter practice (or non-practice) when it comes to the Charter s.8 equality rights. 
• My paper on Charter practice when it comes to criminal justice, arguing that the Attorney-General’s fear that a future government would repeal his standout achievement is stunting the Charter in practice. People who spoke to me afterwards kept using the words ‘controversial’ and ‘feisty’ (??) That is, those who spoke to my face…

Hopefully, the remaining papers – especially the detailed contributions from Elias CJ and Johanness Chan – will be up soon.

Playing the Charter card

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

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

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

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

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

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

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

SARC on conception, caves, councillors and cops

With twenty-three bills introduced into Parliament in just two sittings, eleven last time and twelve this time, writers of statements of compatibility have been getting quite a workout (despite the break for the Abortion bill.) So, too, have writers of SARC reports. 

The latest SARC report raises Charter issues with five bills:

• Assisted Reproductive Technology Bill & Research Involving Human Embryos Bill: Both bills raise the issue of whether embryos have rights and whether the destruction of unwanted embryos and research into unwanted and specially created embryos (of various sorts) are reasonable limits on those rights. In addition, the ART Bill raises issues of:
  • Discrimination on the basis of impairment, sexual orientation and marital status, in that users of assisted reproductive technology have to undergo criminal and child protection checks, whereas natural parents don’t.
  • Freedom of expression, in that a provision intended to ban the commissioning of surrogacy appears to cover public statements about a person’s potential willingness to engage or act as a surrogate, such as this example of public debate
• Greenhouse Gas Sequestration Bill: Is a blanket, uncompensated expropriation of all ‘geological storage formations’ more than 50 feet below Victoria compatible with the property rights of owners of property sold by the Crown prior to 1891 (when the Crown stopped giving away the land deep under Victoria?)
• Local Government Amendment (Councillor Conduct and Other Matters) Bill: Is suspending councillors because of and by reference to unresolved criminal charges compatible with their presumption of innocence (to the extent that one exists outside of the courtroom?)
• Police, Major Crime and Whistleblowers Legislation Amendment Bill: Is the cure for the flawed ban on calling OPI employees as witnesses, allowing them to be called if the DPI agrees, worse than the disease, because it treats state and non-state litigants, including criminal defendants, differently?

SARC also resolved to call for public submissions on the three ART bills, its third inquiry this year.

The Charter vs the ICCPR

During the second reading debate on the ART/Embryo/Cloning bills, the shadow A-G, not a big fan of the Charter or international human rights law, referred to both:

The Attorney-General is a very proud advocate, as we know, of his charter of human rights and responsibilities. That charter is based on the International Covenant on Civil and Political Rights of 1966. Article 23 of that covenant provides that: …

The family is the natural and fundamental group unit of society and is entitled to protection by society and the state. The right of men and women of marriageable age to marry and to found a family shall be recognised.

So it seems to me that the international covenant to which Australia is a signatory and has undertaken to the international community to comply with is one that is founded on men and women forming a family and having a right to bring up their children and found a family on that basis….

There’s a reason he cites the ICCPR and not the Charter. The latter provides:

17(1) Families are the fundamental group unit of society and are entitled to be protected by society and the State.

The differences are no accident. The EM says:

It is not Parliament’s intention to create a right to found a family in the Charter. Parliament intends that the term “families” be given a meaning that recognises the diversity of families that live in Victoria, all of whom are worthy of protection.

The deliberate broad definition of ‘family’ is consistent with the UN Human Rights Committee’s General Comment, which leaves definitional matters to member states:

The Committee notes that the concept of the family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition. However, the Committee emphasizes that, when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in article 23.

The reason for omitting the word ‘natural’ from the Charter, while not spelt out, is presumably similar. Doubtless, it might not have sat all that well with the artificial methods of reproduction contemplated in the Assisted Reproductive Technology Bill 2008. Speaking of artificial, what the hell is a ‘group unit’, anyway?

That the ART Bill was very much in mind was confirmed in the Consultation Committee report,

The consequences of Charter s. 28(2)

The first ever attempt to use the Charter as a point of order in Victoria’s parliament, once again a new use of the Charter prompted by the abortion bill:

Mr Kavanagh — On a point of order, President, the bill mentioned is out of order. The bill was not introduced in this house or in the other house with a statement of compliance with the Charter of Human Rights and Responsibilities. A statement of compliance is required under the Charter of Human Rights and Responsibilities Act before any bill with implications for rights in the charter can be considered by either house of this Parliament.

The minister in the other house and the responsible minister in this house have sought to rely on section 48 of the charter to avoid the need to produce a statement of compatibility. Legal opinion from legal firm Phillips Fox, which opinion is in the public domain, concludes that the minister was mistaken in so relying on that exclusion. Section 48 states in part: Nothing in this charter affects any law applicable to abortion or child destruction … But the bill affects much more than simply abortion and child destruction. The bill also affects a range of other rights that are detailed in the act, including guarantees of equality and non-discrimination under section 8(3) of the charter and issues of rights against unlawful or arbitrary interference with privacy under section 13(a) of the charter. The bill affects freedom of thought, conscience, religion and belief guaranteed under section 14 of the charter. There are also issues about whether the bill raises new criminal offences.

This point canvasses the question of the scope of Charter s. 48, citing not only the legal advice about clause 8 but also, it seems, SARC’s concern about amendments to the ‘serious injury’ offences in clause 10. If these concerns are right, then Charter s. 28(2) has been breached:

28(2) A member of Parliament who introduces a Bill into a House of Parliament, or another member acting on his or her behalf, must cause the statement of compatibility prepared under subsection (1) to be laid before the House of Parliament into which the Bill is introduced before giving his or her second reading speech on the Bill.

(It’s possible that Charter s. 28(1) was also breached, but that depends on whether or not a statement was actually prepared for the Abortion Law Reform Bill.)

But what is the consequence of a breach? As the legal advice correctly pointed out, the Charter only spells out the (non-)consequences if the Bill is passed:

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

So, what happens before the Bill is passed? Kavanagh argues:

A required statement was not put before either house and therefore consideration of this bill by this house is out of order. I have several copies of the legal opinion from Phillips Fox for the benefit of members of the house if they so desire; that opinion completely supports my contention.

But the point was rejected:

The PRESIDENT — Order! In response both to the point of order and Mr Theophanous’s rebuttal and to Mr Kavanagh’s further point, I need to remind the house that I adjudicate on matters contained within the standing orders. The issue as to whether or not Mr Kavanagh is correct is a matter for the house. I must say it is a complicated and interesting point of order that Mr Kavanagh has raised, but I am confident in the advice I have been given that I have no authority to rule on that matter; it is simply a matter for the house. Any questions relating to the validity of the act are simply matters for the courts.

The relevant standing order appears to be:

14.02 A Bill not prepared according to the Standing Orders and practices of the Council will be ordered to be withdrawn by the President.

I don’t know enough about the law of parliamentary procedure to know if Kavanagh is correct that the President that compliance with Charter s. 28(2) isn’t part of the ‘Standing Orders and practices’ of the Council. (The incorporation of statements of compatibility into Hansard is part of the sessional orders of the Legislative Assembly, but weirdly not of the Legislative Council; however, the Council seems to follow the Assembly’s ‘practice’.) But, if true, it raises what seems to be a significant gap in those standing orders or practices.

Now and then

Google is celebrating its birthday by releasing its 2001 archive. Here’s now…:

…and then:

Back in 2001, “Barack Obama” got 672 hits (he gets 66.8M now), while Sarah Palin (like the Charter) got none (she gets 11.8M now.)

The (Charter of) Rights Mooting Competition

This, the second year of the Charter, is also the second year of the Castan Centre’s Charter of Rights Mooting Competition. Like almost everyone, they drop the ‘and Responsibilities’. And perhaps for good reason. Whereas last year, Monash beat Victoria, this year both the finalists were from my law school. I’ve no connection to the competition myself – the point person at MLS is John Tobin – and unfortunately I had to miss this year’s final, due to another engagement. Nor have I had any contact with the mooters, though I know that one of them sometimes reads this blog. (Indeed, my mooting experience at law school was pretty negative. My team lost all its moots at the Jessup Moot and I’m still smarting about one judge who praised one of my opponent’s argument that the defendant country had automatically given the ICJ merits jurisdiction simply by turning up as a ‘very original’ argument. There. Now, surely, I’ve finally gotten over that one! Sigh. Still not…)

Anyway, the Castan Centre competition is clearly a terrific idea, with the capacity not just to educate the mooters themselves, but maybe even the judges about the Charter.  But, because this is Charterblog, I’ve got some concerns too. I only just realised that the mooting problems (from last year and this year) have been posted online. Last year’s problems look terrific, each requiring competitors to discuss ‘issues relating to the Charter’ about the following scenarios:

•  A Sikh prisoner who had his turban, correspondence and cell searched by guards
• Student protesters who clash with Victoria police while protesting an immigration detention centre
• A privately run nursing home facing conversion into a backpackers’ resort.

These questions strike me as raising a great mix of issues about the rights in Part Two and the operative provisions in Parts One and Three of the Charter. The final, in particular, expressly involved a real statute, presumably raising all sorts of interesting issues about the interpretation and conduct mandates.

However, the style has changed for this year’s competition. The three problems are much longer and more convoluted, mixing some realistic situations (notably the final problem, which inititally resembles real life events in the US where children were seized from a polygamist compound) with some pretty bizarre scenarios (Finn twin sisters – Fwisters? – protesting against teaching methods; a vegetarian caught up in the quarantining of a country town stricken with a cow-based disease.) This is a matter of taste, of course, but I don’t much like silly scenarios. Indeed, it’s not really clear to me why you wouldn’t just set real cases: a creepy doctor trying to avoid being disbarred?; a defence company seeking an EEO exemption?. How about a broadcaster trying to show a controversial docudrama?

But that isn’t my main concern. Rather, it’s the particular issues that the competitors were asked to address.