No, the blog isn’t back. But I thought it was worth easing my resolve a touch to mark an event that is an antidote, for now, to so much that bothered me last year: a genuinely great Charter decision.

No, make that a terrific Charter decision! The best decision ever! OMFG… The case is Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381. This is the resolution (for now) of what I referred to on Charterblog as Bongiorno J’s challenge, here and here.

The case concerns Victorian anti-organised-crime legislation, passed in 2004 at the height of the gangland war (don’t mention the war! It’s suppressed.) which gave the Orwellian ‘Chief Examiner’ the power (on application to a court) to coercively question (or demand documents from) anyone suspected of involving in organised crime. (Similar powers are awarded to the Director, Police Integrity and the Special Investigators Monitor, in police corruption matters.) No, the coercion isn’t torture, but only up to five years in Barwon’s Acacia Unit.

Crucially, the legislation expressly abrogates the privilege against self-incrimination but only provides for a limited immunity against the use of answers in a later prosecution:

39. Privilege against self-incrimination abrogated

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

(2) Subsection (3) limits the use that can be made of any answers given at an examination before the Chief Examiner, or documents or other things produced at an examination before the Chief Examiner or in accordance with a witness summons.

(3) The answer, or the document or other thing, is not admissible in evidence against the person in- (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty- other than- (c) proceedings in respect of an offence against this Act; or (d) proceedings under the Confiscation Act 1997; or (e) a proceeding in respect of- (i) in the case of an answer, the falsity of the answer; or (ii) in the case of the production of a document, the falsity of any statement contained in the document.

Section 39(3) stops the examinee’s answers or compelled documents being used against him/her. But the controversy is that it doesn’t stop the later use of evidence derived from those answer/documents being used against the examinee in a criminal prosecution. So, if you are asked to say where you buried a body (on pain of contempt or perjury), your answers can’t be used against you, but the body can! Great. The controversy is heightened because the legislation specifically allows the questioning of people facing criminal charges. (See s29. The Chief Examiner is required to take reasonable steps not to ‘prejudice’ the ongoing proceedings, a nod to an earlier High Court case, Hammond.)

I called this Bongiorno’s challenge, because he decided last year in an unpublished decision that the Charter ‘s rights against self-incrimination mean that courts, in granting applications to the Chief Examiner, should include a condition barring the questioning of charged persons. The present case is an appeal to the Supreme Court against the imposition of such a condition. The identity of the charged person remains a mystery. CoughMokbel! Actually, I have no idea. Hilariously, the identity of the applicant, DAS, ‘a member of Victoria police’, is also a mystery. Joanna Davidson represented him/her/it, and Kris Walker represented VEOHRC, in a rare intervention. [But see the EDIT below.] It’s an all-acronym case! But the A-G was a no-show.

The case went before Warren CJ. Now, I’ve been very hard on Marilyn Warren in my blogging, mainly because of her role in the Unberbelly debacle, but also because of her cavalier treatment of a lesser free speech claim in a leaking case. Those were indeed awful decisions. But I no longer question Warren’s abilities or dedication to the Charter. This decision is a tour de force, not only of Charter law, but also of the law of self-incrimination and evidence. Full disclosure: it also accords (somewhat) with what SARC said in its report on a similar scheme in the Police Integrity Bill: . Go SARC! It also largely contradicts what the Police Minister said in response to SARC’s queries. Sorry Bob…

The whole of Warren’s decision is worth reading, but here are the highlights:

• Warren rejected the applicant’s miserly argument that the meaning of the Charter’s self-incrimination rights should reflect the miserly statutory practice in Australia of routinely abrogating the privilege against self-incrimination and only supplying a use immunity. Rather, the Charter’s rights (whether derived from 24(1) or 25(2)(k)) should be read as reflecting the common law. (I’d prefer if she’d said ‘at least’.)

• Warren rejected the applicant’s miserly argument that the Charter’s self-incrimination rights should reflect narrow readings of those rights in, inter alia, Hong Kong and the UK, rather than the wider readings in the US and Canada. To the contrary, she held, the Canadian decisions are the most apt because they share our reasonable limits jurisprudence. The fact that Canada’s Charter is constitutional doesn’t make a difference to interpretation, just remedies. Also, the Honkers decisions weren’t that compellingly reasoned. (I’d also say that they involved a significantly narrower questioning scheme – stock market regulation – with a qualitatively different function.)

• Warren rejected the applicant’s miserly argument that existing Victorian procedural and evidence law provides sufficient protection against derivative self-incrimination. In one of the most thoughtful analyses of the limitations of Victorian evidence law I’ve ever read, she pointed out that existing fairness jurisprudence is directed to the trial itself, not methods of obtaining evidence, except for the public policy immunity, which, as a discretionary remedy provides much less protection than an immunity. Likewise, the courts’ powers to prevent an abuse of process are too narrow to meet the wider concerns protected by the privilege. (My god, did I write this?)

• Warren therefore rejected the applicant’s arguments that s39’s abrogation of the privilege against self-incrimination somehow doesn’t abrogate the privilege. Broadly, she held that the Charter’s protections should be interpreted as providing a real, not fictional, protection, and that no such real protection could be magicked up using ordinary interpretation principles or relying on vague generalisations about court powers. (Swoon.)

• Now, onto reasonable limits. Warren here writes a lovely decision that works its way through the 7(2) factors. She noted the burden on the applicant and the applicant’s failure to actually demonstrate much about the horrors of organised crime. Conceding that the MC(IP)A is a rational way of fighting the gangs, she then turned to proportionality – Ha, Hollingworth! – and concluded that the goal could still be achieved with derivative immunity. Again, she did a tour de force of derivative immunity law, pointing out that the prosecution could always seek to convince a court that they would have got the tainted evidence anyway. (Best 7(2) analysis ever! Actually, it’s the only s7(2) analysis ever.)

• Now, onto interpretation. She held that the interpretation issue here is only a little bit beyond the common law, which has long required pretty clear statutory language to abrogate the privilege against self-incrimination. Rather than wading into Ghaidan, she left that to another day, correctly noting the the ACTCA has dissed Ghaidan. Instead, she correctly saw that she could save the MC(IP)A either by reading s39 as preserving derivative use immunity (which it was silent on) or by following Bongiorno’s suggestion. She opted for the former, because it provides more protection to defendants (as it extends to defendants who are not yet charged) while simultaneously giving a freer hand to the Chief Examiner. Brilliant. In deciding this, Warren rejected the applicant’s miserly argument that s25(2)(k) only applies once the defendant has been charge; to the contrary, she correctly held, it protects present and future defendants alike. (Swoon!)

• Having resolved the Charter problem using s32, she didn’t have to make a declaration of inconsistent interpretation (yet! How will the government respond to this?)

• And she did all this without rabbitting on at length about abstract Charter issues (Bell!)

For those keeping score, the result isn’t exactly what I predicted in my blogging. I thought that s39 couldn’t be saved by reinterpretation and that a declaration would have to be made. I also thought that there might be room for a Charter s. 38 argument but Warren doesn’t discuss that. [EDIT - Actually, she does at footnote 20.] SARC’s reports were also a little narrower in their readings of Charter s25(2)(k) and a bit broader in their take on Charter s7(2).

Anyway, this is genuinely the best thing that’s ever come from the Charter so far. Indeed, it’s one of the few things to genuinely flow from the Charter at all to date. Between this and Momicilovic, maybe we’re at a tipping point here. (Of course, I’m bracing for disappointment.)

But I wonder if the human rights lobby will be shouting these wonders – which, after all, benefit suspected organised criminals facing charges and will lead to the exclusion of probative evidence of their guilt – from the rooftops. How will the public cope with a real feelgood human rights story? (Indeed, I wondered about this in relation to Bongiorno’s challenge in my Inside Story piece almost a year ago:

The case bristles with political dangers. Attorney-general Rob Hulls could respond by raising countless technical arguments to deflect the threat or simply exercise his prerogative to ignore any judicial declarations of Charter incompatibility. Or he could step back and allow the courts, the parliament and the public to engage in the human rights dialogue that is meant to be the statute’sraison d’être. It’s a step by the Charter’s founding father that would exhibit considerable faith in Victorians, courage in the face of political risk and trust in his Charter.

Over to you Rob (and Phil.)

[EDIT:  Over a month later and still no media release from VEOHRC about the stunning outcome of its intervention in this case. And yet, the Commission does have time to proudly announce unsurprising and non-determinative tribunal rulings where VEOHRC didn't even intervene. I guess some human rights are more equal than others.]

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.

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

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

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

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

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

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

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

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

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

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

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

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

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

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

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

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

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

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

First, on the conduct mandate. Ross commenced with a very detailed analysis of whether (believe it or not) VCAT is a public authority. He trawled his way through the mysteries of whether or not VCAT is established by a statute and whether it has functions of a public nature, ultimately concluding that, yes,  it did, what with the VCAT Act and its public funding and jurisdiction that covers ‘regulatory’ matters. Amazing. While this, of course, is more proof that Ross can read, it does seem a little mad. If VCAT isn’t a public authority, then what the hell is it?

Much more importantly, Ross then turned to the mysteries of Charter s. 4(1)(j):

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…

Ross, after pondering the EM, Williams and Sabet, decided that a decision on whether or not to adjourn a proceeding that determines rights isn’t administrative. He also rejected De Simone’s own argument that VCAT acts in an ‘administrative capacity’ when it is ‘administering justice’:

This submission is misconceived. The relevant test is whether the Tribunal is ‘acting in an administrative capacity’ not whether the matter relates to the administration of justice. Indeed on one view of it everything done by the Tribunal may be regarded as relating to the administration of justice and so adopting Mr De Simone’s contention would defeat the legislative intent of s 4(1)(j).

Now, of course, De Simone’s argument is pretty batty. But Ross’s reference to s. 4(1)(j)’s ‘legislative intent’ is equally bonkers. It’s unclear whether or not Ross knows that the supposed purpose of s. 4(1)(j) is to prevent a constitutional threat to Australia’s unified common law and/or to prevent a ‘horizontal’ human rights impact. Nothing – nothing! – VCAT does could possibly affect the common law, as VCAT can’t develop the common law and, indeed, as a fully statutory tribunal scarcely ever even applies it. Even McMahon v Gould was only picked up as a handy way of applying VCAT’s fully statutory fairness mandate. Moreover, while it’s true that VCAT sometimes decides how private people interact, including in this dispute, many of its decisions – notably whether or not to stay a civil matter – are about whether or not it should intervene in a private affair, which is a vertical, not horizontal, question. So, if legislative intent was the concern, then it’d make a lot of sense to interpret ‘administrative’ very widely to cover everything short of determining inter se (or perhaps even common law) rights. So, ‘adminstration of justice’ is too broad, but administering its own proceedings arguably isn’t.

Of course, the problem here is really that s. 4(1)(j)’s drafting is not only unclear but also obviously much much much broader than its supposed purposes. Not only are a court’s non-administrative capacities much broader than either their common law or private-private functions, but it’s completely unclear why statutory tribunals are included in the exemption at all. After all, statutory tribunals don’t change the common law. Moreover, because their functions are statutory, there will almost certainly be some horizontal effect of the Charter, by virtue of the interpretation mandate. As the Attorney-General recently noted in relation to the Coroners Court, the exemption does little for non-traditional adjudicators. Alas, for all of his attention to whether VCAT was statutory and had public functions, Ross just assumed that VCAT is a tribunal. Of course, that’s the T in VCAT. But, arguably, the ‘legislative intent’ of s. 4(1)(j) calls for a much narrower reading of ‘tribunal’, one that looks to very traditional court-like bodies. Still, that’d be a pretty game argument (and one that would cut across everyone’s – but my – favourite Charter argument: the one based on Charter s. 6(2)(b).)

Second, the interpretation mandate. Ross’s discussion of Charter s. 32 properly noted its differences from traditional interpretation principles, notably its capacity to overturn even settled or uncontroversial readings of a statute. So, should he overturn the established reading that the common law approach is picked up by these statutory provisions?:

80(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

97 The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

98(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

Alas, Ross’s attention to the operative provisions wasn’t matched by his attention to rights. He dismissed De Simone’s argument that a stay was needed to preserve De Simone’s rights as a future criminal defendant as follows:

The entitlement to a fair hearing in a criminal proceeding extends to a person ‘charged with a criminal offence’. Similarly the rights specified in s 25 only extend to persons ‘charged with a criminal offence’ . Mr De Simone has not been charged with a criminal offence. While the probability that charges will be laid against Mr De Simone is high the time frame for the laying of charges and for the conduct of the criminal proceedings is not known. Mr De Simone contends that while the rights in s 25 are expressed to apply to persons charged they must be construed ‘to apply prospectively to persons who are under investigation’. I am not persuaded that there is any warrant for rewriting s 25 in the manner contended by Mr De Simone. The circumstances in which words will be implied into legislation are rare and this case does not meet any of the accepted circumstances .

Oh man. There’s no ‘rewriting s 25′ going on here (as opposed to in Sabet, where Hollingworth wrote the heading into otherwise unambiguous provisions.) Rather, De Simone is correctly arguing that ‘charge’ in human rights provisions is not a technical procedural term (as it is used in Victoria in non-Charter settings), but rather a term of substance. A bevy of European judgments say that ‘charge’ should include any significant official investigation, even if no formal proceeding has commenced.  The technical term is that ‘charge’ has a meaning that is autonomous, i.e. independent of local technical terms. Surely, people’s rights shouldn’t depend on a technical question of whether a particular proceeding has crossed a line defined by the state?

And there’s an even deeper problem with Ross’s approach. The Charter s. 32 question isn’t whether or not a provision ‘limits’ someone’s existing rights, but whether or not a provision is ‘compatible with’ those rights. It doesn’t seem too big a leap to say that a provision that harms a person’s future rights is ‘incompatible with human rights’. Ross, alas, seems a little too keen to shoot down De Simone’s arguments, daft and sensible. Isn’t that sort of conduct that led Ross to boot Young off the case?

And, also, what about De Simone’s rights in the civil proceeding? Recall that Flugge’s stay action succeeded in part because the pending criminal proceeding would harm his rights to a fair civil one, by both requiring him to split his legal resources and forcing him into difficult tactical choices prompted by the different standard of proof and rules of evidence applicable in the two proceedings. De Simone is in a bigger bind than Flugge, because VCAT can only offer him (use) immunity against self-incrimination, whereas everything Flugge said in his ASIC civil proceeding would have gotten him (use) immunity. Alas, Ross just batted the argument away:

In relation to the fairness of the civil proceeding I am not persuaded that s 24(1) of the Charter adds anything, given that the VCAT Act already requires that the Tribunal act fairly and that it is bound by the rules of natural justice . Implicit in the notion of a fair hearing is that fairness extends to all parties. Such a concept is inherent in the balancing exercise reflected in the McMahon v Gould guidelines.

This is exactly the sort of non-analysis I feared in my evidence law paper. The fact that fairness involves questions of balance and that the common law values fairness is an insufficient reason to just assume that every current common law rule purportedly based on fairness is dandy under the Charter. Not only is Charter fairness potentially quite different to common law fairness – international standards and all that – but, as Ross well knows, just about every judge that has looked at McMahon v Gould in the last decade thinks that the case isn’t up to modern fairness standards. Jeez.

Finally, Ross had a look at the Charter s. 6(2)(b) argument. Of course, he didn’t decide whether that (dodgy) argument is a valid one or not. I guess he’ll leave that to Bell, in his umpteen current VCAT matters. Instead, he just dodged the dodgy arugment, dodgily of course:

In the context of this case s 6(2)(b) does not add anything further to that which has been discussed in the context of the interpretation mandate. The rights said to be enlivened are the right to a fair hearing and the rights in s 25. For the reasons given I am not persuaded that the application of the Charter in the circumstances of this case warrants any change in the McMahon v Gould guidelines. I now turn to consider the application of those guidelines to this case.

Well, in one sense this follows from Ross’s dodgy Charter ss. 24 and 25 arguments. But he seems to miss the point that Charter s. 6(2)(b)’s importance is in overriding Charter s. 4(1)(j) (not to mention Charter s. 49(3)), thus arguably bringing some sort of conduct mandate to bear on courts and tribunals. It seems to me that this argument therefore isn’t about whether or not a law is compatible with the Charter, but whether or not the way a court administers the law is compatible with the Charter.  (I can’t get too excited about this issue, given that I think Charter s. 6(2)(b) is basically a typo and that its supposed extended effects are tellingly vague.)  That may have consequences for how a court weighs up the various McMahon v Gould factors. The fact that, in contrast to Flugge, De Simone’s stay application was dismissed by Ross in what struck me as a fairly unfriendly reading of the various factors underlines this concern.

All up, I’ve got mixed feelings about this case. On the one hand, I’m thrilled to see so much discussion of the operative provisions and relatively little dodging based on the Charter’s unfortunate gaps and exemptions or a hand-waiving reliance on ‘reasonableness’. This is the sort of discussion I had naively thought would be the norm in the first few months of this year. So, its eleven months late, but we’re getting there. But, on the other hand, this case still evinces the ‘Charter changes nothing anyway’ approach that is the mainstay of substantive Charter discussion all this year (and not just in legal proceedings.) If that approach remains, then the Charter will be (at best) just a feel good affair. You have to wonder: if the Charter can’t trigger a rethink of silly old 1982 cases that no-one likes like McMahon v Gould, then what is it good for?

To date, I’ve covered 47 cases that mentioned the Charter in 2008. There’s another two that I’ve written a post on but VCAT won’t let me tell you about those. And there’s another four [EDIT: five, as it turns out] left. But the clock is ticking and I won’t have time to do a post on each of them. So, instead, here’s a set of short-takes:

Morgan v Department of Human Services (General) [2008] VCAT 2420: This is an FOI case from VCAT, but not the major case foreshadowed in the VGSO seminar, which I think was the subject of hearings last week. Instead, Ms Morgan is a litigant-in-person who alleges that various agencies of DHS committed manner of wrongs against her and her son in relation to eviction from and provision of crisis accommodation. Her initial step was to launch a private prosecution, but the DPP took it over and then dropped it. She then made an FOI request to DHS, who refused to release 128 documents, claiming a variety of FOI exemptions. She disputes the exemptions, hence the VCAT hearing. The Charter appears to arise in two ways: (1) Morgan alleges that the initial wrongs by the DHS agencies included breaches of various Charter rights: equality, privacy, families/children, liberty. Senior Member Robert Davis held this Charter angle made no difference, given that Morgan was already alleging all manner of illegality. Fair enough, though the position might be different for some other rights, like the right to life, that incorporate a right to a state investigation – arguably, FOI is needed to make sure the state doesn’t duck that job. (2) Davis noted that, in interpreted the FOI Act’s exemptions, he had to ‘give regard to [Charter] s32 in particular and the Charter in general.’ But nothing came of this. No sign of any analysis of what rights the exemptions may be incompatible with. I guess that’ll be up to Bell when he delivers judgment in XYZ v Victoria Police.

Kilkenny v Frankston CC [2008] VCAT 256: This is a plain old residential planning dispute from the Melbourne suburb of Seaford. So, what’s the Charter angle?:

Ms Kilkenny and Mr Colgan expressed concern about the potential for overlooking onto their property from a south facing window to the stairwell. Their grounds assert that the window would cause overlooking causing unreasonable loss of privacy. They also asserted that the charter of human rights had been breached as the council had not given adequate regard to their privacy. However, these concerns were allayed when Mr Kirk agreed to the inclusion of a condition on the permit requiring the deletion of the window in question and for it to be replaced with a skylight. Ms Kilkenny and Mr Colgan agreed that with this change, they were no longer concerned about overlooking or that their rights under the charter were breached.

Well, that’s a relief. I bet Phil Lynch will add this one to his list of feelgood stories about how the Charter is making a real difference! I’m sad, of course, because I would have loved for this one to go to the High Court so they could solve the many fascinating issues Ms Kilkenny’s and Mr Colgan’s assertion raises about the potential ‘horizontal effect’ of the Charter!

A R M v Secretary to the Department of Justice [2008] VSCA 266: This is the companion case to the fizzer, RJE. Unlike RJE, ARM didn’t escape his ESO. That’s unsurprising, because he had quite the history of offending (though, weirdly, he only got a short sentence for his most recent offence, which was against a 19 year-old) and, indeed, he conceded that he was likely to re-offend without supervision. His complaint was that an eight-year order was excessive, because of expert evidence that he’d be fine after a three-year course of treatment. The Court of Appeal held, convincingly, that the trial judge’s order of a three-year review (and two-year reviews thereafter) would do. That’s fair enough. Indeed, there seems to be no difference in substance, so why was ARM even in the court of appeal? Anyway, he did have two smaller victories: (1) He managed to head off an astonishing argument by the government that the SSOMA only allowed appeals against orders, not the duration of them. What was that about ‘model litigants’ not relying on ‘technical defences’? (2) He also won a non-pyrrhic victory, by getting the Court of Appeal to suppress his identity. This involved overcoming another nasty technical defence, but was otherwise easy, as the Court of Appeal felt that non-suppression would be a punishment and that there was no public interest in knowing who ARM was anyway. And that’s where the Charter got a passing mention:

In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.

Yeah, well, in other cases – and in this case, for that matter – it might have been appropriate to consider Charter s 15 too, don’t you reckon? Derryn Hinch would undoubtedly say that Charter s 17 is worth a look too. But, boy, it’s not looking good for his challenge, is it?

Tilley v The Queen [2008] HCA 58: And, in what appears to be the [EDIT: second-] last Charter case of the year, it’s the first one that isn’t in a Victorian court or tribunal, though I guess Kenneth Hayne is still a Victorian of sorts. Not that he went easy on his former court. He was livid that convicted heroin trafficker, Peter Tilley, had to wait almost two years before he got an appeal hearing in the Court of Appeal, and then an astonishing further year before the Court delivered a judgment. (One of Tilley’s co-conspirators (ahem) completed his life sentence during that interlude!) Tilley was now seeking special leave in the High Court because the Court of Appeal, despite spending so long in contemplation, apparently forgot to consider some of his appeal grounds. Before Hayne, he argued that he had only one year left of his five-year non-parole period and an appellate success after that would be pointless unless he got bail. That triggered one half of a High Court precedent on bail pending special leave, but alas Hayne held that Tilley failed the other half, which required that the special leave application had a good chance of succeeding. Anyway, in the midst of Hayne’s raking the Court of Appeal over the coals, he said this:

It is neither necessary nor appropriate to examine here what, if any, consequences now follow in Victoria in this respect from s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and its provision that: “(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees – … (c) to be tried without unreasonable delay”.

Nice to know he’s heard of the Charter. But why wasn’t it necessary or appropriate to actually apply the thing? Two explanations: (1) Charter s. 49(2), the bane of all ‘unreasonable delay’ cases for now. Tilley, of course, was charged yonks ago, but there would seem to be an argument that his proceedings before Hayne were separate from his criminal proceedings. (This makes a mockery of Charter s. 49(2), of course, but it deserves that.) (2) The High Court wasn’t exercising appellate jurisdiction (which might involve reviewing whether or not the Court of Appeal should have applied the Charter during the appeal) but original jurisdiction (and, in particular, s73 of the Constitution, which is the source of the High Court’s bail power.) So, no Charter s. 32 (the constitution isn’t a Victorian statutory provision), no Charter s. 38 (the High Court isn’t a public authority) and no Charter s. 6(2)(b) (the High Court isn’t a Victorian court or tribunal), right? Well, maybe. But what about the Judiciary Act and, in particular, this provision?:

79(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

Now, I certainly know very little about federal jurisdiction – Gummow: ‘I just felt a disturbance in the force!’ – and it may well be that this provision doesn’t bind the High Court exercising original jurisdiction. But, on the off-chance that it does, then wouldn’t it be arguable that Charter s. 25(2)(c) is a law ‘relating to procedure’ and that one or other of the operative provisions – Charter s. 6(2)(b) perhaps – is picked up by s79 in applications like Tilley’s? (As I understand things, this pick-up can even apply to state laws expressed to apply only to Victorian courts.)  And might that mean that Hayne has to rethink that rather restrictive High Court precedent on bail, to the extent that it limits Tilley’s rights under Charter s. 25(2)(c)? Just some crazy speculation, but maybe someone else is smoking what I’m smoking. [EDIT: Hey, someone was, but the Federal Court and the High Court didn't inhale; interpretation is probably the least likely operative provision to be picked up, I imagine.] Not Hayne though, but he did give Tilley a little help, expediting his (doomed) special leave application.

And that’s it for my short takes. Not that short really. Despite my next post, I might just add some additional short takes on the off-chance that more 2008 judgments emerge on Austlii, even next year. But, as for 2009 judgments, you’re on your own.

[EDIT: As promised, here's a short take on a new 2008 case that has appeared on Austlii:

Drummond v Telstra Corporation Limited [2008] VCAT 2630 is an unfair dismissal case trying to qualify as an anti-discrimination case. Drummond got a job as a customer service officer at Telstra, but first had to do a training course (during which he’d be employed by the company running the course.) Things didn’t go well: Drummond’s original choice of seat in the class room was rejected (and he ended up sitting next to the class’s sole other failure), he was late to work after being assaulted at a train station, he was late because of a traffic jam, he took a long break to change a bandage, etc. Soon, he was having informal and then formal conversations about his performance. The course runners obviously wanted to get rid of him and Drummond resigned. But he later took a case to VEOHRC arguing race and age discrimination, which the Commission refused to pursue further. Now he’s self-represented in VCAT with the same arguments, but Telstra is trying to get his case summarily dismissed. VCAT agreed to summarily dismiss the race claim, which seemed to be based on the intriguing premise that his difficulties with the course were due to his Australian nationality, which left him less suited to the ’shitty jobs’ that overseas people (the majority of the course participants) are willing to do in Australia. The Charter came up because Drummond argued that summary dismissal was contrary to his Charter rights, notably his right to a fair hearing, via Charter s. 32 applied to VCAT’s summary dismissal provision.

Alas, VCAT Deputy President Michael Macnamara proved less than ept at handling the Charter arguments. Drummond argued that summary dismissal was inappropriate in a case where a self-represented litigant was up against a deep-pocketed corporation. That’s an ‘equality of arms’ argument, which is a well established feature of the right to a fair hearing, even in civil matters (not that Drummond’s particular take on that argument is necessarily a winner.) But Macnamara held – in an argument that the government will be smiling about – that the presence of particular equality rights in s25(2) for criminal defendants implied their absence in s24(1). Jeez. Drummond also argued Charter ss. 15, 38 and 39. Macnamra couldn’t make head or tail of the former – Drummond’s right to put his case to the court, maybe? – and dismissed the latter on the grounds that Telstra – a company limited by shares – isn’t a public authority. That, of course, is no reason (on its own) to reject a claim that Telstra is a public authority (though there might be other reasons to do so.) A clearer ground to reject the application of ss 38 and 39 is that all the dismissals happened before 1/1/8 (Charter s. 49(3)), though maybe Drummond’s point is that Telstra’s motion for summary dismissal was a breach of the mandate. All up, another instant of a (probably) dodgy Charter argument dodged in a dodgy way.

When I sat in on the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, one point had me quite confused:

What I don’t get here is that all the arguments were about the mandatory bits of the ESO scheme. But an ESO also exposes you to the discretion of the Adult Parole Board, which can order stuff like mandatory medical treatment, having to ‘reside’ at Ararat Prison, who you can associate with, whether you can use the net, etc. There are plenty of rights limitations there. The Board, of course, isn’t bound by the Charter. So why don’t ESOs engage all those rights? It’s not clear that that’s what the sex offenders are arguing, though. Strange.

Victoria’s SSOMA, in this way, as in so many others, just like New Zealand’s scheme, has two sections specifying the consequences of an extended supervision order. Section 15 sets out some mandatory conditions that apply to all ESOs, ranging from the silly – not committing an offence – to the mundane – reporting a change of name or employment – and the intrusive – not moving address or leaving Victoria without prior permission. But it also includes these three conditions:

(g) obey all lawful instructions and directions of the Secretary given under section 16(1);

(h) obey all lawful instructions and directions of the Adult Parole Board given under section 16(2).

Section 16 provides that these two entities can give any instruction or direction considered ‘necessary’, respectively, to administer and ‘to achieve the purposes of the conditions’ of the ESO. The remainder of the section then sets out examples of what the Parole Board can do, including imposing curfews, banning the subject from particular job,  activities or people, requiring attendance at treatment programmes and the wearing of electronic bracelets, and, most dramatically, telling the offender where he may ‘reside’ (which, the SSOMA now explicitly states, may include the grounds of a prison.) 

In his judgment, Nettle solved the mystery of why Tate nevertheless only addressed the compatibility of s15 with the Charter (notably freedom of movement) and not the far more dramatic provisions of s16:

Counsel for the respondent and counsel for the Attorney submitted that, although it is open to the Secretary or Parole Board to impose onerous restrictions on an offender under ss 15 and 16, when it comes to the interpretation of s 11 the court should presume that the Secretary and Parole Board will act lawfully, and so in accordance with the Charter; and, therefore, that such orders and directions as the Secretary or Parole Board might give would never go further in restricting the rights of an offender than would be demonstrably justifiable according to the criteria delineated in s 7 of the Charter.

My year of blogging the Charter has been an exercise in steadily increasing cynicism and lowering expectations. And yet, even in late December, the government’s lawyers can still manage to make my jaw drop. (And, note that, yet again, the government party to the proceeding – represented by Tate – and the Attorney-General intervening under Charter s. 34 – represented by Davidson – are marking precisely the same submissions, as always aimed at preventing the application of the Charter. What is gained by giving the Attorney a right of intervention in these cases, other than allowing the government the benefit of two voices speaking in unison at the table? )

The government’s submission is its most extreme attempt this year to mininise any possibility of the Charter ever being applied. Under the guise of a stunningly broad reading of the interpretation mandate, its effect, if a court is foolish enough to accept it, would be to prevent the Charter’s interpretation mandate and declarations power from ever being applied to a statute that gave any person or entity a discretionary power to limit someone’s rights. Needless to say, that category covers the vast majority of occasions when rights are limited in Victoria. Moreover, it would also cover a future law that, say, gave a member of the executive a discretion to torture someone, or apply the death penalty, or to force them to convert to Christianity. The terms and prupose of such a law, the government would claim – in court, in public, in a statement of compatibility – is still compatible with the Charter because its discretions will be interpreted as only permitting those actions when they are reasonable under Charter s. 7(2).

It might seem like this argument has a significant pro-human-rights element, because it carries the corollary that all discretionary power conferred by a statute is limited within the confines of Charter s. 7(2). But this apparent generosity is really a cynical move that will replace the general remedies in the Charter’s scrutiny, interpretation and declaration regimes against overly broad statutory discretions with a case-by-case remedy that is afforded by a judicial review action (or, where applicable, a Charter s. 39(1) action), which must be litigated each and every time a government body acts. As well, because the government’s approach is couched in terms of Charter s. 7(2), each instance of litigation will have to be framed in terms of a’reasonable limits’ argument about the particular act in question. As I’ve observed many times in this blog, Charter s. 7(2) assessments of particular conduct have an inherent tendency to be  self-affirming smug exercises in human rights box-ticking. The government’s argument, if accepted, would replace any chance of a human rights culture with an almost completely non-accountable process of lip service.

The Adult Parole Board’s power under the SSOMA is, of course, a case in point. Offenders subject to an ESO will typically lack the time, temperament, resources and energy to go to the Supreme Court every time a condition is added to an ESO. Moreover, the Parole Board is  itself largely impervious to legal remedies, with only a weak form of judicial review covering its most egregious overreaches. Further, it has been exempted from the conduct mandate (in the unlikely event the Charter s. 39(1) would allow any remedies to be sought against the parole board.)  And, then there’s Charter s. 7(2). Consider this argument that the government advanced to press its claim that s. 16, despite its theoretical draconian nature, is actually entirely reasonable in practice:

Reference was made to material put before the court as to the orders and directions which have been given in this case, and it was submitted that it was open to the court to take that into account as evidence of the way in which the Act operates in fact and thus as legislative facts which may assist in the interpretation of the legislation.

Nettle didn’t provide any details about this, but how could any ‘material possibly establish the reasonableness of every one of the conditions attached to every ESO? And how could the parties opposing the government in this case possibly take issue with this assessment during a three-day hearing? I have little doubt that this ‘material’ was nothing but a self-serving analysis by the parole board of how the SSOMA has been applied to keep kids safe, doubtless based on the same expert assessments that founded the original orders? (And can any claim about the Adult Parole Board’s reasonableness in keeping within its powers stand against the history of the Board acting ultra vires in requiring ESO subjects to ‘reside in the community’ at Ararat Prison?)

According to Nettle, the government’s argument that the interpretation mandate magically turns draconian statutory powers into reasonableness-compliant discretions rested on three casest. One, a Canadian decision on Quebec’s language rules, was apparently relied on to back up the government’s above argument that an Act’s reasonableness can be assessed by how it ‘operates in fact’. But the facts relied on in the Canadian case were about regulations, i.e. other laws, not decisions and, anyway, that evidence was rejected an incapable of sustaining a reasonable limits argument. Nettle implied that the government didn’t press this case much. The second case was Kay, a UK decision I’ved previously covered in this blog, where the House of Lords announced that courts adjudicating tenancy matters don’t have to assess each and every decision by a landlord for rights compatibility, but rather assume that the governing statutes will keep the landlords in line. Nettle dismissed that case as about procedure, but there’s a bigger problem with it.  As I covered previously, Kay is really an instance of the UK courts upholding the parliament’s prerogative to legislate incompatibly with decisions of the European Court on Human Rights. Indeed, as I explained, this year, the House of Lords, following another ECtHR rebuff, made an explicit finding that the UK’s interpretation mandate could not be stretched to read reasonableness limitations into a broad statutory power. Are these examples really the best the government could come up with?

Well, it turns out that the government’s third case is much more on point.  Slaight Communications Inc v Davidson is a fascinating case from the early years of Canada’s Charter involving an industrial relations adjudicator who ordered an employer to provide a reference about a dismissed employee and to refer any inquiries to the terms of the letter. Not only did this raise some interesting free speech issues, but also, because the adjudicator was acting pursuant to a quite vague statute, it also raised the very relevant question of whether a compatibility assessment should focus on the statute or on the adjudicator’s decision. The Court held that it should focus on the decision (which the majority held satisfied the reasonable limits test.) That obviously fits the government’s argument before the Victorian Court of Appeal, but Canada’s Charter is, of course, a very different beast to Victoria’s.  According to Nettle, the government’s argument that the Canadian approach was applicable here  rested on the analysis of Lamer J (who dissented, but whose analysis was expressly endorsed by the majority.) The crucial passage is this one:

The fact that the Charter applies to the order made by the adjudicator in the case at bar is not, in my opinion, open to question. The adjudicator is a statutory creature: he is appointed pursuant to a legislative provision and derives all his powers from the statute. As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed.

Now, the last two-thirds of this passage are obviously very helpful to the government, especially that last sentence, which Nettle emphasised. However, interestingly, Nettle’s extract omitted the first third altogether, instead coming in mid-way through the third sentence with the words ‘[I]it is impossible’. I wonder if that cribbed version of the quote was supplied by the government?

The reason the first third is significant is because it reveals that the interpretative task that Lamer was engaged in was premised on features of Canada’s Charter that are missing in Victoria: first, Canada’s Charter is a supreme law, so an incompatible law will be ultra vires; and, second, Canada’s Charter is self-applying, so any government conduct that breaches it is automatically afforded a remedy. These characteristics make legislative incompatibility a much more dramatic event in Canada than in Victoria – creating a legal vacuum, as opposed to a political debate – and conduct incompatibility a much more easily remediable event in Canada than Victoria (where the obligations mandate is hedged by a narrow scope, broad defences and limited remedies.) These differences make Canada’s context an excellent context for the kind of broad all-purpose remedial interpretation power the Victorian government favours, but make Victoria a terrible context. While both Charters are said to be based on a dialogue model, they aren’t the same model. Something that faciliates one model can be fatal to another.

It’s for all these reasons – not to mention the textual features of Charter s. 32, like ‘interpreted’ and the purposive limitation – that I’ve consistently argued in this blog that the Charter’s interpretation mandate isn’t and should be a magic cure-all for overly broad legislation. If the government’s approach was accepted, then there would be no incentive for drafters to draft legislation appropriately narrowly nor for parliament to insist on appropriate narrowness. The government would never have to fear a declaration of incompatibility or even an express reading down of the key terms of a statute (such as ‘likely’ in the SSOMA.) And, unlike in Canada, there’d be very little risk that particular government decisions will be successfully narrowed either. It’s for these exact same reasons that the government argued the contrary here (and, presumably, will continue to insist that Charter s. 32 is extremely broad when it comes to statutory powers.)

Nettle, at least, didn’t fall for any of this, although his rejection was specific to the context of the SSOMA. He argued: (1) that even SSOMA’s mandatory conditions were rights-incompatible if the ‘likely’ threshold was too low; (2) that SSOMA, by splitting ESOs into two stages, a threshold ‘likelihood’ test for orders and a subsequent ‘necessity’ test for discretionary conditions, isn’t amenable to the kind of blanket reading down for reasonableness that the government favoured; indeed, it reads more like the government intended the main rights balancing to occur at the order stage; and (3) that the government’s argument sits poorly with the Attorney-General’s decision to exempt the Parole Board from the Charter. On that latter argument, while I am pleased to see the government’s cravenness coming back to bite it – something I predicted – I think it’s incorrect to use the government’s decisions in 2007 and 2008 to interpret the applicability of a 2006 statute (the Charter) to a 2005 one (the SSOMA.) The correct argument is a broader one: that the government’s argument sits poorly with the presence of Charter s. 38. If the government is right, then the conduct mandate has little to do in contexts governed by a statute (and yet carries a defence for such contexts.)

Alas, between the majority’s Charter dodge and Nettle’s, there was no real opportunity for the court to give the government’s Charter dodge the careful consideration it deserved. The government’s argument should not have been tossed aside lightly (as Nettle did.) Rather, as Dorothy Parker would say, it should be thrown with great force. Instead, we should expect to see the evil thing float up repeatedly over the next couple of years.

When I went and watched part of the hearing that led to R J E v Secretary to the Department of Justice [2008] VSCA 265, Maxwell and Weinberg seemed set to throw the Charter at the government, while Justice Geoffrey Nettle seemed to be sitting on the sidelines and even throwing the government a bone or two. That just goes to show that my lousy predicting ability is quite robust. As previously posted, the chatty duo bizarrely didn’t apply the Charter, while Nettle, seeing more value in comity, felt that only the Charter could justify ditching Callaway’s interpretation of s11 of the SSOMA from just two years ago.

And Nettle promptly applied the Charter to do just that. This is, of course, quite exciting: perhaps only the second time the Charter has actually made a difference to the outcome of a case (albeit, on this occasion, only the difference between a majority and a unanimous new interpretation.) Some will see more excitement in Nettle’s discussion of the interpretation mandate:

I acknowledge that, if TSL, Tillman and Cornwall are regarded as having been correctly decided according to ordinary conceptions of statutory construction, it must also be accepted that Parliament’s intention at the time of enacting s 11 of the Act was that ‘likely’ need not mean more likely than not. To adopt now the construction which I prefer is to accept that the intention has changed. But that appears to be the way in which the Charter was intended to operate.

It’s great to see that he’s clearly read Charter s. 32, even giving a bit of lip service to the purposive limitation. And he’s even read some overseas cases on rights compatible interpretation. Glory be. In particular, he adopted the discussion of the UKHRA interpretation mandate by Lord Woolf in Poplar Housing:

(a) Unless the legislation would otherwise be in breach of the Convention section 3 can be ignored (so courts should always first ascertain whether, absent section 3, there would be any breach of the Convention).

(b) If the court has to rely on section 3 it should limit the extent of the modified meaning to that which is necessary to achieve compatibility.

(c) Section 3 does not entitle the court to legislate (its task is still one of interpretation, but interpretation in accordance with the direction contained in section 3).

(d) The views of the parties and of the Crown as to whether a ‘constructive’ interpretation should be adopted cannot modify the task of the court (if section 3 applies the court is required to adopt the section 3 approach to interpretation)

The last of these principles is the most exciting, giving some hope that the Victorian judiciary will break free of slavishly parroting of the most intelligible of the lawyers before it. The second-last, while question-begging, is a reasonable point (and Nettle later tantalises us with an almost-endorsement of Ghaidan, not that UK-style interpretative high-jinx are needed to read ‘likely’ as ‘probable.’)

The first two points, alas, are the Charter-marginalising ‘ordinary interpretation first, Charter interpretation last’ method. Nettle says that he prefers this to Elias CJ’s dissent in Hansen due to its ‘clarity and simplicity’, not to mention its endorsement by Anthony Mason in his post-constitutional-senility life in Honkers. But: (1) The dispute in Hansen was about the interaction between the interpretation mandate and the reasonable limits provision, which is a combination peculiar to Victoria, the ACT and NZ, and doesn’t arise in the UK or HK. (2) Any chance, Nettle, of doing some freaking interpretation of the Charter, i.e. reading its words and structure, looking into its history, etc? Since when have ’simplicity’ and ‘clarity’ been the sole test of a major structural question in a statute? Believe it or not, fundamental rights laws tend to raise some other issues too!

Still, all up, this is a rare instance this year of someone treating the Charter as something other than a bunch of soft suggestions. As Nettle says:

I consider that the interpretation of s 11 of the Act which was adopted in TSL is now inconsistent with an offender’s right to move freely within and without Victoria and the offender’s right to privacy, if not his or her right to liberty. It follows from Lord Woolf’s second direction in Poplar that the Charter cannot be ignored. Consistently with his Lordship’s third direction, however, I consider that to construe ‘likely’ in s 11 as meaning ‘at least more likely than not’ is within the permissible ambit of interpretation, well short of the forbidden territory of legislation.

Are you listening, the rest of the Victorian judiciary? Stop ignoring it.

Alas, Nettle’s relatively solid command of the operative provisions was not matched by his analysis of the rights provisions and the central notion of compatibility. His central reasoning appears in this dross:

Evidently, the purpose of s 11 of the Act is to guard against the dire consequences of the commission of a relevant offence. In some circumstances, that might justify significant encroachments on an individuals rights of freedom of movement and privacy and even liberty. But if ‘likely’ in s 11 of the Act is construed as including a less than even chance, it is capable of rendering the requirement for satisfaction to a high degree of probability illusory. For example, one might, well be satisfied to a high degree of probability (say, 80 per cent) that there is a 45 per cent chance of the commission of a relevant offence, and yet, according to the laws of probability, the risk of the commission of the offence as so assessed would be only 36 per cent. That would mean that a relatively low risk of re-offending could provide a sufficient basis for making an order. Even giving full weight to the purpose of s 11, I cannot conceive of the potentially far reaching restrictions on rights provided for in the Act as being capable of demonstrable justification in the relevant sense unless the risk of an offender committing a relevant offence is at least more than even.

Frankly, I just cannot believe that this is all he could come up with after three days of hearing.

The weakness of Nettle’s reasoning is evident in the very numbers he comes up with. Who thinks that there’s no conceivable justification for restricting the liberty of someone who poses a better than one in three chance of raping a child? OK, I can see a couple of hands, but chances are you folks think that’s it’s always wrong to lock up someone once they’ve served their time, right? Nettle’s argument, however, assumes that just about every reasonable person would reject out-of-hand restricting the liberty of a person who has a one-in-three chance of raping a kid, but happily restrict the liberty of someone who has a one-in-two chance of raping a kid. Personally, I doubt that there are many people like that. Indeed, most people would say: there’s very little relevant difference between 36% and 51% when it comes to protecting kids.

Actually, that’s precisely what the UK House of Lords said when it construed the word ‘likely’ in a statutory provision governing when a child could be removed from its parents because of abuse was ‘likely to occur’:

In this context Parliament cannot have been using likely in the sense of more likely than not. If the word likely were given this meaning, it would have the effect of leaving outside the scope of care and supervision orders cases where the court is satisfied there is a real possibility of significant harm to the child in the future but that possibility falls short of being more likely than not. Strictly, if this were the correct reading of the Act, a care or supervision order would not be available even in a case where the risk of significant harm is as likely as not. Nothing would suffice short of proof that the child will probably suffer significant harm. The difficulty with this interpretation of section 31(2)(a) is that it would draw the boundary line at an altogether inapposite point. What is in issue is the prospect, or risk, of the child suffering significant harm. When exposed to this risk a child may need protection just as much when the risk is considered to be less than fifty-fifty as when the risk is of a higher order. Conversely, so far as the parents are concerned, there is no particular magic in a threshold test based on a probability of significant harm as distinct from a real possibility. It is otherwise if there is no real possibility. It is eminently understandable that Parliament should provide that where there is no real possibility of significant harm, parental responsibility should remain solely with the parents. That makes sense as a threshold in the interests of the parents and the child in a way that a higher threshold, based on probability, would not.

This quote is very pertinent for several reasons. First, as noted, it involves state action to protect kids from risk, the same issue (albeit not the same action) as is raised by s11. Second, according to NZ’s Court of Appeal, the origins of the word ‘likely’ in NZ’s ESO statute (which seems to be the source of the same word in our statute) is in the above UK judgment. Third, just recently, the House of Lords affirmed that this interpretation remains correct under the UKHRA. I’m just flabbergasted that Nettle doesn’t address any of this. Surely it was discussed at length in the hearing?

So, how did Nettle come up with the magic ‘one in two’ threshold? He doesn’t say, but it seems clear that all he was really doing was interpreting ‘likely’ as ‘narrowly’ as possible, in the sense that he was choosing the interpretation that least restricts RJE’s Charter rights. In other words, he’s just treating the interpretation mandate as if it’s just a pushier form of the common law principle of construing penal/rights-reducing statutes ‘narrowly’. And that’s wrong for three reasons:

First, if Hansen is right, then the ‘narrowness’ approach is wrong because the narrowness that flows from the interpretation mandate is itself restricted by the ‘reasonable limits’ provision. If 40% is reasonable, then that’s all the deviation that Charter s. 32 requires from the ‘ordinary’ (Callaway) interpretation. That being said, Nettle does claim every now and then that anything less than 50% is simply at odds with democracy, etc. But how can he say that? What is magic about 50%?

Second, more importantly, it totally ignores the fact that other rights than RJE’s are at stake. Why won’t someone think of the children? The UK judges sure did, and they didn’t even have Charter s. 17(2) more or less requiring them to act in their best interests:

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.

What’s Nettle’s excuse?

Third, and most importantly, the ‘narrowness’ approach grossly oversimplifies the interpretation mandate, which is about (a) interpretation; (b) compatibility; and (c) rights (yes plural.) As I argued in my substantive criminal law paper a few months back, the essence of the interpretation mandate isn’t about ‘narrow’ readings, but about ’sensible’ readings. The question posed by s11 of the SSOMA, Charter s. 32 and the myriad of Charter rights (RJE’s and children’s) engaged by it is: what’s the best interpretation you can come up with of the term ‘likely’ that strikes the most reasonable balance between them, a reasonableness that ought to be guided by Parliament’s purposes in enacting both the Charter and the SSOMA (just a year apart.)

Now, the above doesn’t mean that I think that I think that ‘likely’ ought to be a lower threshold than ‘more likely than not’. It’s true that there are some sound reasons to lower the threshold when you consider the rights of children. But I don’t think that it’s possible to read all that much into Parliament’s intentions. The EM to the SSOMA doesn’t make any attempt to define ‘likely’, nor does it make any reference to either the NZ or UK precedents. Alas, it seems like the Parliament simply left the hard yards of defining thresholds to the courts, presumably so that it wouldn’t have to bear the political risk if things went pear-shaped. It’s just that sort of cravenly legislating that the Charter exists for, in my opinion. So, I wouldn’t give any margin of appreciation to Parliament on this one.

However, it seems to me that there’s one key consideration that cuts through this morass of competing issues. It’s this one:

21(3) A person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law.

Now, Tate did try to convince the Court of Appeal that nothing in the SSOMA affects anyone’s liberty. (In part, that was based on an appalling take on interpretation, that I’ll get to next post.) The Court of Appeal, alas, didn’t put the kibosh on that, with Maxwell & Weinberg dodging the Charter and Nettle noting the issue (somewhat skeptically, it seemed to me, but others may see it differently) but deciding that even RJE’s movement rights couldn’t be infringed unless there was an even bet that he was going to rape a kid. But what I think is so significant about the liberty right – and, I fear, is why Tate wants it read as narrowly as possible – is that it, more than any other right, is intimately associated, not with substantive justice, but with procedural justice. That’s clearest in the detention-specific rights in Charter s. 21 (like habeas corpus), but it also comes through in Charter s. 21(3). (It’s true that Charter s. 7(2)’s ’subject under law’ requirement is probably to similar effect, but explicit protections are surely more powerful than vague ones.)

As I argued in my substantive criminal law paper, provisions like Charter s. 21(3) pick up the wealth of public law protections that are standard fodder in comparative human rights law: protections against vagueness, arbitrariness, overbreadth, over-delegation, capriciousness and, above all, lack of accountability. And that’s the issue that, in my mind, points most in favour of a ‘more likely than not’ standard’. While there’s nothing magic in numbers, there is also a lot of danger in trying to set standards that are either qualitiative – such as the UK’s ‘unacceptable risk’ version of ‘likely’ – or too quantitative. On the latter, think how impossibly subjective it would be to rate someone as either more or less than a 33% chance of raping someone. On the other hand, making judgments about whether something is more likely or not is something that everyone, but especially judges, are well familiar with. It’s a standard that is less likely than all the others to produce wildly and widely varying application amongst different judges. And that makes it the appropriate standard for an infringement on liberty like an ESO.  (See here for my earlier post about the need for non-subjective standards when it comes to risk assessment.)

So, after all that, does that mean that the Court of Appeal got the result right after all? Well, they got the definition right, I reckon. But the details of the majority’s approach to its application to RJE, cheerily endorsed by Nettle, are quite disturbing. RJE turns out to be not-your-average child sex offender. He was convicted of three sexual offences in the space of what appeared to be a few months in 1997: he had sex with his newly-discovered sixteen year-old daughter, then raped and bashed his domestic partner; and then, after she moved out, raped the fifteen year-old friend of another daughter. The state’s experts both took the view that RJE’s conduct was an inappropriate approach to sex and the particular circumstances of the time (his unhappy relationship), rather than an intrinsically peadophilc tendency. Basically, he’s a nasty version of David Duchovny’s character in Calofornication. The experts stuck their necks out to say that RJE’s later willingness to lie to a new partner by saying he was in jail for defensive manslaughter,  writing a dodgy letter to her daughter, and doing a runnner during his ESO hearing, were nothing worrying. But RJE’s County Court judge disagreed.

Now, there’s nothing wrong with the Court of Appeal disagreeing, in turn, with the County Court judge. But here’s their reasoning:

Predicting whether a particular person will commit a criminal offence in the future is notoriously difficult. The Monitoring Act recognises that the prediction of future dangerousness, if it is to be attempted at all, is a matter for expert opinion. As the report in the present case illustrates, the making of such a prediction in a particular case requires expertise in observation and assessment of those who commit offences of the particular type, and a detailed knowledge of the types of factors, both personal and environmental, which increase or reduce the risk of further offending. The necessary expertise combines the ability to make a qualitative assessment of an individual and the ability to utilise the available quantitative risk assessment instruments.

One thing is clear. Judges, including experienced criminal judges, have no such expertise… Judges are, of course, expert in assessing matters of fact, and an expert report ‘is no better than the facts on which it is based.’  But where – as here – the facts are not in contest, and the expert opinion is both cogent and unchallenged, a judge should ordinarily be slow to depart from the risk assessment which the expert has made.

Now, as someone who teaches a course on expert evidence law, where the dangers of deference to expert evidence is so well known, I find this just shocking. It’s true that, before this passage, Maxwell and Weinberg noted that the final decision is the judge’s. But this statement is as clear a message as there can be to lower court judges that what the expert says on ESOs is what should go. And, don’t think that their statement is limited to RJE’s situation, when the experts are opposed to an ESO. Here’s what Maxwell and Weinberg said next:

This point may be simply illustrated. If the undisputed opinion of the expert assessor was that the offender was likely to commit a relevant sex offence if released unsupervised, it is difficult to imagine on what other grounds a judge might fail to be satisfied that the likelihood existed. Conversely, if the assessor’s unchallenged opinion was that the offender was not likely to offend again if released unsupervised, it is again difficult to imagine what material – being material which (ex hypothesi) the assessor must not have considered – could be sufficiently demonstrative of risk to justify the court nevertheless being satisfied that the relevant likelihood existed. If such other material existed, it would seem to us to be far preferable for the expert to be asked whether it affected the risk assessment previously made. In the present case, as will appear, the assessor was asked to comment on particular matters in just this way.

This is a total debacle and one, I’d predict, that the High Court would instantly and angrily reverse if the case got to them. There’s no way that experts should ever be given such power and there’s no way that the language of s11 supports that. (Unfortunately, the drafters of s11 left out the ‘clear and compelling evidence’ standard that the Queenslanders used.) I imagine that many experts will blanch at being given such responsibility (and will inevitably err on the side of caution by recommending ESOs  all the time; no-one wants a raped child on their conscience); some experts, more worringly, will relish the power to decide who is supervised and who isn’t. Indeed, the Court of Appeal’s take on the centrality of state experts is so extreme that it may well raise a Kable argument (i.e. that the court is now a rubber stamp for experts, thus damaging their precious role as a potential repository for federal power.)

More importantly, I think that the Court of Appeal’s approach is not only incompatible with Charter s. 21(3), but also with this Charter right:

24(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

In short, in their unwillingness (the majority) and inability (Nettle) to properly apply the Charter, the Court of Appeal has replaced Callaway J’s hopeless interpretation of s11 of the SSOMA with an equally hopeless approach of their own. There’s no way it will last (though I suspect that, rather than a High Court appeal, or a five-judge bench, the whole thing will be put out of its misery by new Victorian detention legislation sometime in the new year.)

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

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

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

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

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

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

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

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

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

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

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

It’ll take me three posts (I think) to cover the fizzer that was R J E v Secretary to the Department of Justice [2008] VSCA 265. This post is concerned with the majority’s decision not to ‘apply’ the Charter when ruling on the meaning of this provision of Victoria’s Serious Sex Offenders Monitoring Act 2005 (SSOMA):

11(1) A court may only make an extended supervision order in respect of an offender if it is satisfied, to a high degree of probability, that the offender is likely to commit a relevant offence if released in the community on completion of the service of any custodial sentence that he or she is serving, or was serving at the time at which the application was made, and not made subject to an extended supervision order.

All three judges on the Court of Appeal overturned a previous decision from 2006 that held that likely didn’t mean ‘more probable than not’, instead holding that that’s exactly what it meant.

But Court of Appeal President Chris Maxwell and carpetbagger Mark Weinberg made those findings without reference to the Charter’s interpretation mandate:

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.

In view of that conclusion, there is no occasion to consider further the question – debated at some length on the appeal – of the correct methodology to be applied where s 32(1) is applicable. While that is undoubtedly a question of real significance following the advent of the Charter, it is not appropriate that we decide that question when it is unnecessary to do so. The correct result is more likely to be arrived at in a case where the choice to be made is of practical consequence, that is, where the court is able to assess the different results which might be produced by the competing approaches.

This is a dodge and a highly controversial one on a number of levels.

First, the proposition that it’s better to hold off choosing between competing methodologies until they make a practical difference is debatable. Antipathy to this sort of thing is common amongst anti-’activist’ judges (e.g. Dyson Heydon’s love letter to John Howard before his appointment to the High Court, not that he kept his word.) But this practice has previously been known by the friendlier term ‘obiter dicta’ and is part of a venerable tradition of legal development by the courts, on the basis that it is often worth getting the principles right before practical differences start to emerge, rather than long after. The mess that is Charter jurisprudence to date is testament for the benefits of a little ‘early’ guidance from above. Moreover, the claim that it’s better to make the decision in a case ‘where the court is able to assess the different results’ is itself a controversial one, suggesting that choices of methodology are inevitably ’result-driven’. The alternative view is that such ‘hard cases make bad law’. Anyway, if Maxwell and Weinberg really believed in Heydon’s claptrap, then they wouldn’t have resolved a new meaning for ‘likely’ at all, as, according to them, RJE’s order was bad on any test. 

Second, despite their claim not to be choosing between the ‘competing approaches’, Maxwell & Weinberg’s judgment actually made a choice on one issue: their reasoning in this case clearly draws a distinction between ‘ordinary’ statutory interpretation and Charter statutory interpretation, with the latter playing a fall-back role, apparently only applying if there is a further ‘choice of meanings’ available. There’s four problems with that. One is whether or not this two-step approach is consistent with Parliament’s intention in creating a human rights culture, where (presumably) those rights are front-and-centre of the law-making involved in interpretation. Another is that their choice takes at least a step towards resolving the controversial Hansen debate (that the court claimed it wasn’t resolving), as the majority Hansen view depends on drawing a distinction between ordinary and Charter principles of interpretation.   A third  is that it’s not clear that the ‘choice of meanings’ has been fully explored (as the Briginshaw principle certainly contemplates a beefed-up ‘balance of probabilities’ standard when big issues are at stake.) And a fourth is that the judges completely failed to consider the (admittedly controversial) possibility that the Charter might require a lower threshold than ‘more likely than not’,  because of the competing rights of potential victims of child sexual offenders. (More on that in another post.) 

Third, there’s the (sole) issue that divided the Court: whether it’s proper for Victoria to differ from an authoritative ruling of the NSW Court of Appeal on an identical statutory formulation in a similar (but not identical) scheme, simply because it thinks that view is wrong. The binding authority on this issue of comity is, alas, a recent High Court judgment from Heydon’s poison pen. In the course of slapping down the NSW Court of Appeal for daring to think outside the box on some equity issue, Heydon wrote:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.  Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law.

Maxwell & Weinberg argued (relying on a more recent High Court backtrack, building on its ‘it’s the words, stupid’ shtick) that comity doesn’t apply to state legislation. But that’s a dodgy argument on two grounds: (1) the NSW legislation doesn’t just happen to be the same as Victoria’s; it was copied from it. (The ‘high degree of probability that the offender is likely’ formulation is too stupid to have been thought up twice.) (2) the NSW decision in question followed an earlier Victorian decision in the name of comity. Not only does that mean that Victoria’s new take on comity is at odds with NSW’s (itself a breach of comity), but it also will now put NSW in an embarrassing position of having to now rethink it’s own ruling (because the comity it was founded on no longer exists.) I reckon there’re are going to be a lot of grumpy looks south towards the Murray, especially at recent emigrant Weinberg.

Maxwell & Weinberg’s fall-back argument was that the NSW case is a dodgy instrument for comity, because it was itself an exercise in comity (and a very reluctant one at that) and that, but for comity, the NSW court would have opted for the approach that Victoria will now take. This is the ‘comity of errors’ I referred to in a previous post, and it’s certainly a good example of what’s wrong with the High Court’s comity fettish. But, as Nettle pointed out, the NSW court, when choosing between comity and its own preference, opted for comity precisely because it thought that the earlier Victorian view was a ‘respectable one’, and it made that decision in full awareness of the various flaws in the older Victorian case. So, the majority’s fall-back argument is yet another blow against comity, consisting of the Victorian Court of Appeal disagreeing with the NSW Court of Appeal on whether an earlier Victorian approach was ‘respectable’. For that matter, it also differs with the NZ Court of Appeal, which also interpreted ‘likely’ in its (quite similar) legislation to mean something less than ‘more likely than not.’ I guess comity isn’t trans-Tasman. A bit rude, though.

And there’s a third problem with the majority’s approach: the Court of Appeal’s willingness to depart from one of its own rulings. This issue was actually ruled on the day before RJE came out, in a five-judge decision on an obscure sentencing law issue. There, the majority departed from an earlier three-judge decision on the ground that it was plainly wrong (a finding that the Court of Appeal in RJE made about the earlier Victorian decision on s11, and for good reason too.) But one judge in that decision said that it was wrong to depart from the earlier decision (even in a five-judge bench gathered for just that purpose), arguing that the earlier decision was recent and carefully considered, that the majority was too quick to find that it was ‘plainly wrong’ and that, if the legislature had thought the earlier decision was wrong, it could have fixed it. And who was that judge? Why, Weinberg JA. Maybe he should work on a bit of auto-comity.

The significance of this bewildering debate is that, instead of the majority’s tortured reasoning on comity, the Charter provides a perfect, legally uncontroversial way out. The interpretation mandate has ended ALL arguments about comity between Victorian decisions on legislation and inter-state (and past) decisions on similar legislation anywhere else in Australia (except the ACT.) We simply don’t have the same statutes anymore, even if they look identical. For the same reason, precedents on the meaning of legislation, even recent, carefully considered ones, are just obiter now. A court – even a single judge, even a magistrate, even a VCAT member – is now not only allowed but required to depart from earlier precedents if the Charter demands it, thanks to the interpretation mandate. 

By contrast, thanks to Maxwell and Weinberg’s refusal to apply the Charter, they have not only failed to provide guidance on the Charter, but their very ruling on s11 may be transient. What if a NSW sex offender, monitored or detained according to the test that previously applied in Victoria, appealed to the High Court? And what if the High Court dismissed the appeal and endorsed the current NSW law? Where would that leave RJE, which is just a decision about ordinary statutory interpration of a provision that has the same wording as NSW’s, and whose reasoning didn’t draw any distinction with the NSW jurisprudence? Alternatively, what if the Secretary or the Attorney-General appeal RJE itself to the High Court and the High Court disagrees with Maxwell and Weinberg on ordinary interpretation? Will the High Court have to then apply the interpretation mandate without any guidanc from the Court of Appeal? I’m pretty sure there’re some High Court authorities complaining about that sort of thing. None of these things are unlikely scenarios.

And that’s why it’s obvious to me that Maxwell and Weinberg didn’t just find it unnecessary to apply the Charter and that, rather, they dodged applying it. There was simply no reason for them not to apply the Charter in this case, and every reason for them to do so (as Nettle rightly held.) So, you have to speculate why they didn’t do it. My argument for this is clearly on the record: the current application of the Charter is being completely dominated by a fear of bad publicity (such as the Hun headlines I wrongly predicted a few days back), and RJE is a classic example of a very unpopular rights claimant. But  RJE, the decision, not the man, is an instance of the cost of that craven and political approach: any meaningful guidance on some fundamental features of the Charter has now been put off for yet another rainy day when a more presentable claimant emerges. You have to wonder whether that guidance will ever come.

One of the flurry of Charter passing mentions this week is R v Dickson [2008] VSCA 271, an appeal by a former AFP officer who was convicted of posing as a customs officer to facilitate the theft of some counterfeit cigarettes being held in a Port Melbourne warehouse. He was convicted of conspiring with three other people: Holmes (then a Victoria Police officer), Purdy (an associate of Holmes’s) and Wang (the fence, turned Crown witness.) But there were problems with each of these alleged co-conspirators. At Dickson’s first trial (which was joint with Holmes and Purdy), the trial judge directed an acquittal of the latter two. Because the jury had to be discharged, Dickson was tried again on his own, and it was only then that the prosecution joined Wang as a co-conspirator (arguing that, given his guilty plea, including his role in the original joint trial would have been too confusing for the jury.

The theft occurred in January 2004 and Dickson’s first trial ended in mid-2006. However, it was not until late 2007 that the new presentment against Dickson was filed. Moreover, the prosecution stuffed that one up and they had to have another go in early 2008. These events later events all happened after the Charter s. 49(2) cut-off date of 1/1/7 (and the final presentment occurred after the Charter s. 49(3) cut-off date of 1/1/8.) The convicted Dickson appealed on numerous grounds, including complaints against the presentment and the conduct of the trial, as well as an (apparently vague) complaint that ‘he did not receive a fair trial within the meaning of’ the Charter. The Court of Appeal refused leave and had this to say about the Charter ground:

Counsel for the Crown did not dispute that the filing of the ‘new’ presentment amounted to ‘the commencement of proceedings’ within the meaning of the Charter of Human Rights and Responsibilities Act 2006, and, against that background, the contention was advanced on behalf of the applicant that there has been a breach of s 25(2)(c) of the Charter and a failure to ensure that the applicant was ‘tried without unreasonable delay’. Therefore it was said, the verdict should not be permitted to stand.

Just pausing there, a couple of things to note. First, the Crown here seems to be conceding and the Court seems to be accepting, in what appears to be a first, that King J’s view on the meaning of ‘commenced’ in Charter s. 49(2) as meaning the laying of charges isn’t the end of the story. As I’ve speculated previously, if the charges are changed down the track, then arguably the proceedings re-commence, potentially bringing old criminal proceedings into the purview of the Charter. Certainly, the application of the Charter in this case would otherwise make no sense, as Dickson was originally charged (and, indeed, tried) well before 1/1/7. Second, Dickson’s ‘fair hearing’ complaint seems to have morphed into an ‘unreasonable delay’ complaint, which is a much narrower argument and was dispatched as follows by Vincent, Weinberg and Robson:

There is no need to expand upon the relationship between the rights accorded under the Charter and the principles which this Court must apply in performing its role under s 568 of the Crimes Act in addressing an application for leave to appeal against conviction. The present matter involved a number of alleged offenders and hearings and, having regard to the reasonable expectations that could be placed upon our criminal justice system, could not be assessed as inordinately protracted or resulting in the unreasonable or unjustified delay of the hearing at which the applicant was convicted. Addressed by reference to the function of this Court under s 568, there is certainly nothing that could give rise to any reasonable concern that the lapse of time between the occurrence of the events in question and the time at which it was conducted or by reason of some form of forensic disadvantage that the applicant may have suffered. Indeed none was ever suggested by his counsel.

And there’s two more things to say about this. First, it’s far from clear that there’s ‘no need to expand upon the relationship between’ the Charter and Victoria’s statutory appeal provision:

568(1) 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

To the contrary, the Charter’s interpretation mandate may have changed the meaning of that provision (and terms like ‘miscarriage of justice’) and, as well, the Charter’s conduct mandate may have changed what trial and pre-trial events amounted to a ‘wrong decision on any question of law’.

Second, in particular, the Court of Appeal’s assessment focuses only on the ‘reasonable expectations of the criminal justice system’ and the risk of ‘forensic disadvantage’. But that arguably gives short shrift the ‘minimum guarantee’ offered by Charter s. 25(2)(c), which may well cover broader concerns, such as the defendant’s entitlement to a system and processes that can resolve the question of his guilt of theft in under four years, absent exceptional difficulties. In particular, the major delay in this case was the prosecution’s charging of Holmes and Purdy and what proved to be an inadequate case, thus costing Dickson his chance to have the matter resolved in 2006. Dickson’s reasonable expectations and whether or not he suffered a forensic disadvantage are arguably beside the point, as the Charter may have changed the ‘function of this Court under s. 568′ beyond the confines of traditional appellate law.

Anyway, I’m a bit surprised that Dickson’s ‘fair hearing’ complaint ended up shrinking to a ‘reasonable delay’ complaint, as his other appeal grounds raised quite different human rights concerns.His major complaint was the late adding of Wang to the conspiracy, which conveniently meant that the Dickson’s alleged co-conspirators included one person who had pled guilty to the crime, rather than just two people who a judge had already acquitted. The Court of Appeal held that the acquittals were a non-issue because of a High Court ruling from 1982:

The High Court made it clear in R v Darby that it was open to convict one accused before the Court and acquit another who was jointly presented with him, even if they were the only two persons alleged to have participated. Until that decision, the position was that outlined in Dharmasena v R, where the Privy Council confirmed the long adopted principle that, where two persons were jointly presented for trial on a count of conspiracy between themselves and no other, the acquittal of one necessitated the acquittal of the other. If that had been the law at the first trial in this matter, as both of his alleged co-conspirators had been acquitted, that of the applicant would also have followed. However, in Darby, the rule was overturned…

That’s all true, but the interesting question is whether or not Darby is still good law under the Charter, a question that would have been very live had Wang not been belatedly added to the presentment. Darby was based on the logic that an acquittal isn’t the same as innocence:

In support of the continued existence of the rule, counsel for the respondent also relies on the nature in law of the offence of conspiracy. He argues that the question is not one of changing appellate procedures or distinctions in the quantum or weight of evidence. It is the very agreement of minds that forms an essential element of the crime, and this consideration makes it logical and fair to say that even though A may admit that he is guilty of conspiring with B (and no one else), the effect of an acquittal of B is to deny the existence of the conspiracy itself. The matter may be put another way: is there not a fundamental inconsistency in sustaining a conviction that A conspired with B when B has been declared to be innocent of conspiring with A? Despite the plausibility of the argument, we are unable to accept it. In our opinion, it proceeds upon a mistaken view of the true effect of an acquittal. We agree, with respect, with the observations of Lord Salmon in Shannon :

‘An accused is entitled to be acquitted unless the evidence satisfies the jury beyond reasonable doubt that he is guilty. A verdict of not guilty may mean that the jury is certain that the accused is innocent, or it may mean that, although the evidence arouses considerable suspicion, it is insufficient to convince the jury of the accused’s guilt beyond reasonable doubt. The verdict of not guilty is consistent with the jury having taken either view. The only effect of an acquittal, in law, is that the accused can never again be brought before a criminal court and tried for the same offence. So far as the Crown is concerned, the accused is deemed, in law, to be innocent. His acquittal cannot, however, affect anyone but himself and indeed would not be admissible in evidence on behalf of or against anyone else. Anyone acquitted of a criminal conspiracy may still be sued in damages for the conspiracy of which he has been acquitted at his trial.

But this view prompted a furious dissent by Murphy J, who observed:

The assertion in Shannon that acquittal does not amount to establishment of innocence has been said to be a very dangerous principle (see R. v. Plummer (1902) 2 KB 339, at pp 348-349 . It is worse than that. It is subversive of one of the most important constitutional principles on which the freedom of our society depends. If adopted by this Court and allowed to stand, it will be the greatest setback to human rights and individual freedom in the history of this Court. (at p686)

The history of human freedom is largely the relationship between the individual and the State (that is the Government or the Crown) in the administration of criminal justice. The fundamental feature of that system in Australia, and until Shannon in England, is that a judgment of acquittal is, as between the State and the accused, a complete clearance of the accused from the charge. It was no mere immunity from further prosecution as might be obtained by a pardon. It was a judgment of innocence. If this were not so, once a person is charged, he can never be cleared; there is no way in the criminal justice system to establish his innocence. Although he would be presumed innocent until verdict, if he is acquitted his innocence becomes questionable.

As the record now stands, Mr. Thomas is not guilty of conspiring with Mr. Darby, and Mr. Darby is not guilty of conspiring with Mr. Thomas. This Court now proposes to intervene to achieve the result that, although Mr. Thomas remains not guilty of conspiracy with Mr. Darby (and the State cannot properly suggest that he is guilty), Mr. Darby will be guilty of conspiring with Mr. Thomas. This brings the criminal justice system into disrepute. Either there was a conspiracy between them or there was not. In acquitting Mr. Thomas, the law states there was no conspiracy. It offends commonsense to leave a contradictory verdict that there was a conspiracy and that Mr. Thomas was a conspirator. Further, the State and the legal system impugn and undermine Mr. Thomas’s acquittal by maintaining (as it does by the judgment against Mr. Darby) that there was a conspiracy and that Mr. Thomas was a conspirator with Mr. Darby

That these concerns are not mere matters of principle is made clear by the fact that Darby was confirmed in Mickelberg v R, when the High Court upheld Peter and Raymond Mickleberg’s convictions for the Perth Mint Swindle despite the acquittal of their brother Brian. The case has belatedly joined the ranks of Australia’s miscarriages of justice.

Ah, Lionel, we miss you (sorta.) But it’s clear what right this argument would raise under the Charter:

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

In Dickson’s case, the person whose rights are being harmed by the presentment isn’t Dickson, but rather the acquitted Holmes and Purdy. The European cases on the presumption of innocence, and public conduct in relation to them, are especially strict when it comes to state conduct suggesting that someone is guilty after they’ve been acquitted. So, there’s an argument that, in filing the new presentment in January 2008, the prosecution breached its conduct mandate in relation to Charter s. 25(1).

Conspriacy is, conveniently, a statutory crime in Victoria, so there’s something for the interpretation mandate to work on. Alternatively, an argument could be made that the conduct mandate barred the prosecutors from filing their new presentment. Either way, a major issue would be this provision:

321B It is hereby declared that the conviction of a conspirator whether tried together with or separately from another alleged conspirator or other alleged conspirators may stand notwithstanding that the other alleged conspirator or conspirators is are or may be acquitted unless in all the circumstances of the case the conviction is inconsistent with the acquittal of the other alleged conspirator or conspirators.

Have Charter ss. 25(1) & 32(1) changed the meaning of ‘inconsistent’ to something much broader, e.g. when all other alleged conspirators have been acquitted? Alternatively, does this provision provide prosecutors with Charter s. 38(2) cover when it comes to issuing presentments? And, failing that, is a declaration of inconsistent interpretation called for?

It would’ve have been nice to have seen these issues  (and some others that might arise under Charter s. 24) explored in this case. Alas, as I’ve often worried, the Victorian courts’ predisposition is to assume that their existing processes are already adequately attuned to all criminal process rights. That’s an assumption that effectively treats the Charter as if it had never been enacted.

Well, the year hasn’t ended with a bang, but there’ve been heaps of Charter whimpers, even one in the High Court. But, before I get to all of those, there’s also been some negative press about the Victorian Government Solicitor’s Office, which raises (in my mind at least) some interesting Charter issues.

One story involves an intra-University dispute:

Last week, government solicitor John Cain jnr sent a letter to James Doughney, a member of the university’s governing council, demanding he publicly apologise for “false and defamatory allegations” in an attack on a plan by university leadersto cut jobs. The letter says the university’s chancellor, Supreme Court judge Frank Vincent, and vice-chancellor Elizabeth Harman, reserve their rights to take legal action if Dr Doughney does not withdraw and apologise for his comments.

In October, The Age revealed Dr Doughney had sent a six-page letter to state and federal MPs accusing Professor Harman of using a “pea-and-thimble trick” to create a cash crisis to justify slashing 270 jobs. With Victoria University and the tertiary union in an industrial dispute, Mr McGowan said the defamation threat was an attempt to intimidate Dr Doughney in his role as state president of the union. Dr Doughney, an economist and elected staff representative on the university council, has said it was extraordinary for the chancellor to use a government solicitor in a bid to “gag” an academic.

As they say, disputes within Universities are so bitter precisely because so little is at stake. This story really only got attention because it involves some non-University players: a sitting judge and the head of the VGSO. The NTEU thought that the government should butt out, but the Attorney-General snapped back that Victoria Uni is the government:

Mr Hulls’ spokeswoman, Meaghan Shaw, said Victoria University was a statutory entity. She said the institution had been a client of the Victorian Government Solicitor’s Office for some years.

But sometimes it’s not so fun to be the government, depending on whether you fall within the definition of public authority:

4(1) For the purposes of this Charter a public authority is-

(a) a public official within the meaning of the Public Administration Act 2004; or

(b) an entity established by a statutory provision that has functions of a public nature; or

(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise);…

So, who’s a public authority here?:

• Victoria Uni? This isn’t entirely clear. It’s definitely a ’statutory entity’, so it’s a public authority if it ‘has functions of a public nature’. Is tertiary education a function of a public nature? I bet that question taxes University heads every day.

• Frank Vincent? (whose free speech credentials shone through in the Underbelly judgment.) This is clearer, but there’re two murky catches. He’s definitely a ‘public authority’, because he’s a ‘public official‘ under the Public Administration Act 2004, which includes judges, magistrates and the like. (He’s probably also a holder of a statutory office too, through his Chancellorship.) But one question is whether he’s a ‘court’ (or is that strictly his day job?) and then whether his Chancellorship is a non-administrative function under the dreaded Charter s. 4(1)(j). The other is whether his little letter to Dr Doughney, threatening a private law action, is an ‘act of a private nature’? So very murky. 

• VGSO? This is the clearest. I can’t be bothered tracking down what VGSO is, exactly, but it’s almost certainly a public entity and, hence, a public official, and hence a public authority (gawd.) (If not, then things depend on the status of VU, as VGSO in this case is acting on behalf of them, right?) 

Anyway, the NTEU and Dr Doughney will be thrilled to know that that means that there’s no way that VGSO would do anything that was incompatible with human rights, including Dougney’s freedom of expression:

…[F]ormer Melbourne University vice-chancellor David Pennington said it was “silly” and “nonsense” for Dr Doughney to suggest the conflict was about academic freedom of speech. “It is not an issue of academic study and expertise, he told The Age. Professor Pennington said Dr Doughney was in a conflicted position in his roles as the elected academic representative on the university’s governing council and his position as the union’s state president. “This is a matter of political and industrial positioning.” Dr Doughney had the right to participate in the decision-making process of the university’s council, Professor Pennington said, but his primary responsibility was to the “institution and the corporation”.

Well, that’s a relief. But Doughney shouldn’t have worried anyway. Victoria’s top lawyer, Pamela Tate, is a member of the Australian Academy of Law and (until two months back) was on the advisory committee to Melbourne Law School’s Centre for Comparative Constitutional Studies. No way would she have a bar of any infringements on academic freedom.

The other story is the long-running saga of Mark Morgan, the Castlemaine solicitor whose miseries started after he won a heady victory for the victims of some dodgy police conduct. The police, mostly still on the job, were too poor to pay, but Morgan initially got an order for Victoria to pick up the tab. Alas, that victory triggered demands from Morgan’s ‘no win no fee’ barristers that they get paid, which wasn’t looking like it’d happen anytime soon because Victoria was appealing. The barristers convinced Morgan, who was no longer acting in the case, that he should promise the court that he’d repay the fees to Victoria in the event that it won its appeal. Of course, Victoria did and Morgan is up for a lot of money, as neither the police officers (ever) nor  the barristers (initially) paid up. According to the Court of Appeal, the VGSO officer in charge named Hugh McArdle got pissed off at Morgan (in part because he mistakenly thought a failed contempt action by the barristers had Morgan’s backing) and threw the legal book at him, demanding payment despite further High Court proceedings and the absence of any time-condition on Morgan’s undertaking, and threatening and eventually bringing contempt actions.

Alas, McArdle’s contempt action was a bridge too far. This wasn’t clear at first, because County Court judge Pamela Jenkins found Morgan guilty and made nasty sentencing remarks that caused Morgan a world of trouble with the profession (which, of course, made it even more difficult for him to meet his debt to Victoria.) But, yesterday, in Morgan v State of Victoria [2008] VSCA 267, three appeal judges found that the contempt action was untenable in multiple ways, mostly connected to the failure of either the undertaking or later orders that replaced it to specify a time for Morgan to pay his debt. The Court gave Jenkins a big serve, for being overly happy to wave away service process rules,  for quoting a Bongiorno judgment out of context and for wrongly labelling Morgan’s wrongs extreme. Each of these errors probably piggybacks on errors by VGSO, which is the one who failed to comply with the rules and – just a guess, I dont know – just might have been the one who led Jenkins into error on Bongiorno’s wise words. The most newsworthy point is that the Court firmly disagreed with Jenkins sentencing remarks, instead noting that VGSO came to the party with very dirty hands:

Moreover, Victoria’s position was hardly that of the model litigant which it purports to be and should have been. Throughout, whatever be the explanation for it, Victoria’s position towards the appellant was very aggressive, repayment being sought prematurely and otherwise inappropriately, and contempt proceedings being threatened on several occasions and ultimately being brought when on proper analysis contempt could not be established.

Ooooh. See, it’s sometimes a good thing to be sued by the government!:

2. The obligation requires that the State of Victoria, its Departments and agencies:

(a) act fairly in handling claims and litigation brought by or against the State or an agency,

…

(c) avoid litigation, wherever possible,

…

(f) do not rely on technical defences unless the State’s or the agency’s interests would be prejudiced by the failure to comply with a particular requirement,

(g) do not take advantage of a claimant who lacks the resources to litigate a legitimate claim,…

But it’s not just the model litigant rules that VGSO is bound by. It also has to act compatibly with Morgan’s human rights, such as his right not to be deprived of property otherwise than in accordance with law and this little sleeper:

21(8) A person must not be imprisoned only because of his or her inability to perform a contractual obligation.

This, international human rights lawyers would know, is one of the few non-derogable rights in the ICCPR. Jenkins gave Morgan a four month prison sentence (the maximum allowed), albeit one suspended for two years:

…Mr Morgan said yesterday he was preparing for negotiations with the Government about the aftermath of the decision. “I’m obviously very grateful that the Court of Appeal has set right what I believe was a travesty … the State of Victoria’s case was based on a Dickensian reading of (law about) the payment of debt,” he said. “I believe I would be one of the few people in the common law world who’s actually been imprisoned for a debt … I suppose my only crime is that I had a go at the police and won.” A Department of Justice spokeswoman said Victorian Government solicitors were reviewing the court’s decision.

VGSO claimed it prosecuted Morgan for failing to live up to his undertaking and that its purpose was punitive, rather than just an attempt to enforce a debt. The Court of Appeal thought it was ‘by no means clear’ that VGSO’s word on that should be accepted and, anyway, VGSO and the County Court alike should prefer alternative remedies first. Contempt proceedings should not be undertaken lightly. Arguably, in light of Charter ss. 21(8) and 38(1), they shouldn’t be undertaken at all in cases that are, in substance, just disputes about someone’s failure to repay a debt because s/he couldn’t afford to do so. (Of course, Charter s. 49(2) would nix any application of the Charter in this case, as the contempt proceeding was initiated in 2005. What was that in the Model Litigant rules about not relying on ‘technical’ defences?)

Alas, thrilling as it is to be sued by VGSO, it’s not at all clear that there are any meaningful remedies available for breaches by VGSO of its conduct mandate. It’s worth noting that VGSO is actually bound by this provision of the Public Adminstration Act:

7 (1) The following are the public sector values- … (g) human rights-public officials should respect and promote the human rights set out in the Charter of Human Rights and Responsibilities by- (i) making decisions and providing advice consistent with human rights; and (ii) actively implementing, promoting and supporting human rights.

(2) Subject to subsections (3) and (3A), a public sector body Head must promote the public sector values to public officials employed in the body and ensure that any statement of values adopted or applied by the body is consistent with the public sector values.

But, alas:

(4) Nothing in subsection (1)- (a) creates in any person any legal right or gives rise to any civil cause of action…

I’ve had cause to wonder whether the actions of VGSO or any other government lawyer can be referred to the Ombudsman for an inquiry into Charter compliance:

13(1) The principal function of the Ombudsman shall be to enquire into or investigate any administrative action taken in any Government Department or Public Statutory Body to which this Act applies or by any member of staff of a municipal council.

(1A) The functions of the Ombudsman under subsection (1) include the power to enquire into or investigate whether any administrative action is incompatible with a human right set out in the Charter of Human Rights and Responsibilities.

But alas:

(3) Nothing in this Act shall authorize the Ombudsman to enquire into or investigate any administrative action taken-…. (b) by a person acting as legal adviser to the Crown or as counsel for the Crown in any proceedings;

So, that leaves Charter s. 39, which blocks relief or remedies for breaches of the conduct mandate unless there’s a non-Charter remedy. And those are thin on the ground for the VGSO, which doesn’t seem to be a tribunal under the Administrative Law Act and is probably pretty tough to sue under common law administrative review (satellite litigation and all that.) 

No small wonder, then, that the human rights culture is having so much trouble taking hold in the VGSO….