R v Momcilovic

THE COURT OF APPEAL DECLARES THAT:

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

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

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

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

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

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

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

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

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

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

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

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

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

and at [105]-[107]:

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

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

Why reject the broader conception of the Charter? Because:

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

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

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

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

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

Charter nerds

Let’s start with those folks who’ve actually read the whole Charter carefully and thought about it. That’s actually a distinct minority of the people who opine about human rights in general or the Charter in particular (including, as has become apparent in this blog, a good portion of Victoria’s judiciary.)

The big news for us Charter nerds is that Momcilovic has completely rejected three classic and oft-cited overseas judgments on parliamentary rights statutes:

• Poplar (a UK case holding that provisions like Charter s. 32 are weird and different and should be applied only after the usual law fails);
• Ghaidan (a UK case holding that provisions like Charter s. 32 gives judges quasi-legislative powers)
• Hansen (a NZ case holding that provisions like Charter s. 7(2) reduce all human rights into reasonable human rights, and hence all legal effects of rights statutes into exercises in assessments of reasonableness)

Rather, the only overseas judgement that has found favour in Victoria is Elias CJ’s concurring judgment  in Hansen.  This rejection  of the orthodoxy is stunning in part because these same cases have already been endorsed by a number of the VCA’s brethren, including Chief Justice Marilyn Warren, outgoing VCAT prez Kevin Bell, Geoffrey Nettle, Mark Weinberg, Paul Bongiorno and, curiously, Maxwell himself. In rejecting Poplar and Ghaidan, the VCA abandoned numerous luminaries from the House of Lords and UK Supreme Court in favour of the more cautious approach of the UK’s Lord Millett and the present New Zealand Supreme Court, who all emphasised the central role of Parliament and traditional interpretation in upholding the rule of law. Also cited repeatedly to this effect were various judges of Australia’s High Court.  (The rejection of Ghaidan by the ACTCA (who?) in Fearnside got a scandalously brief mention.)  In rejecting Hansen, the VCA cited Elias CJ and also, interestingly, Victoria’s own Acting Special Counsel for Human Rights, Claudia Geiringer, whose own analysis of Hansen got a very big tick.

Beyond these authorities, the VCA also relied on the many differences between Victoria and the UK, notably the latter’s subjection to an enforceable supranational rights court, creating imperatives that don’t exist in Australia or New Zealand. Most importantly, though, they relied on the words of Victorians: the words of Charter s. 32 (including its use of ‘interpreted’, rather than ‘read and given effect’, which I have highlighted on this blog), the Charter’s explanatory memoranda and, especially and at length, the words of Charter’s own proponents, both in the Community Consultation and in Parliament, in 2006 when members of the government lined up assure the worryworts that the Charter won’t revolutionise our system of government. Isn’t it annoying when someone pays attention to your say, rather than what you mean?

This blog has long railed against Poplar and Ghaidan, on much the same grounds as the VCA gave (not that Charterblog got a mention. Sniff.) On the other hand, I’m surprised (if not entirely dismayed) by the rejection of Hansen, which held that the interpretative mandate is limited to laws that unreasonably limit rights. Instead, the VCA held, Charter s. 7(2) should be ignored altogether when applying Charter s. 32. My surprise is because I think there are significant textual and conceptual reasons to treat Charter s. 7(2) as inseparably linked to the human rights listed in Part 2 (and hence to Charter s. 32′s imperative to interpret statutes compatibly with human rights.) Here are the textual reasons.

3 ‘human rights’ means the civil and political rights set out in Part 2.

7(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.

In short, ‘human rights’ refers to all of Part 2, including Charter s. 7(2). Amazingly, the VCA didn’t do any analysis of the oft-debated term ‘compatibly with human rights’ that appears (amongst other places) in Charter ss. 32(1) and 38(1) and arguably supports the Hansen approach, which distinguishes between limiting rights and acting compatibly with them. (Nor do they address the inconsistent terminology in Charter s. 36(2), which refers to a provision that cannot be interpreted ‘consistently with human rights’, arguably providing a hook for the anti-Hansen approach.) The further, conceptual reason for my suprise is that a lot of the Part 2 rights have their own internal limits (either express or implied because of a conflict with other rights) and it seems weird to me that Charter s. 7(2)’s comprehensive test of reasonable limits is somehow divorced from all of that. The interaction between internal rights limits and Charter s. 32 doesn’t arise under the human rights at issue in Momcilovic - Charter s. 25(1) – and is an unacknowledged major piece of unfinished business in the ruling.

That being said, I’m not at all dismayed about the rejection of Hansen, because as I’ve also pointed out, Elias CJ’s sense that a ‘bill of reasonable rights’ is nothing more than an exercise in self-congratulation and box-ticking was well bourne out by the Charter’s pathetic first operative year. (I was lucky enough to meet Sian Elias at the 2008 Protecting Human Rights conference: yes, the one where I gave that speech . One memorable thing about her was that, but for her nametag, you’d never pick that she was a judge at all. (I mean that as a big compliment.) She gave a (alas, not that memorable) speech at the conference but also came to the dinner later (also attended, interestingly, by Marcia Neave.) She has an excellent ear for justice, in particular for the way that seemingly protective discretionary rules can transform into exercises in self-legitimation.) Another reason I’m happy is that the ruling in Momcilovic also seems to give tremendous support to my quirky view that Charter s. 38(1) – the conduct mandate – is not subject to s7(2) either.  The VCA’s reasons for rejecting Hansen – that lay readers of the Charter lack the capacity to make the complex assessments required by Charter s. 7(2) – seem directly applicable to public authorities, don’t they?

Apart from those big picture points, Momcilovic also is of interest for its application (or non-application) of some of the picky bits of the Charter:

First, the revelation of yet another stupid Charter provision:

36(3) If the Supreme Court is considering making a declaration of inconsistent interpretation, it must ensure that notice in the prescribed form of that fact is given to the Attorney-General and the Commission.

Pursuant to Charter s. 36(3), the VCA didn’t actually makes a declaration of inconsistent interpretation, but instead merely issued such a notice to the A-G and VEOHRC that it was thinking of doing so. This is absurd, as both recipients of this notice were already parties to the case and were well aware that one possibility was that the VCA would determine that DPCSA s. 5 was incompatible with Charter s. 25(2) and that couldn’t be magicked away by Charter s. 32. Moreover, not only was the notice unnecessary, but it was also pointless. Charter s. 36(2) entitles the VCA to issue a declaration once it has found that a Victorian statutory provision cannot be interpreted consistently with a Charter right, and that’s already happened. So, what’s the point of notice at this late stage? An ambiguity in Charter s. 36(3) is when, exactly, the VCA is to be regarded as ‘considering’ making a declaration. Is it before or after it makes its finding about inconsistency? Who knows? (Come to think of it, Momcilovic‘s rejection of Hansen surely implies that a Charter s. 36(3) notice should be issued before the Supreme Court assesses whether a statutory provision meets the Charter s. 7(2) test. Oops.)  Anyway, now that the pre-declaratory notice has been issued, can the A-G and VEOHRC make further submissions on that finding? Or are they limited to making submissions on the residual discretion in Charter s. 36(2), which only provides that the SC ‘may’ make a declaration, rather than requiring it to do so. There’s some law on this from the UK, where some courts have declined to make declarations, e.g. in moot cases. But what possible reason would there be to not make a notice in this case? A woman stands convicted under a law that is incompatible with her human rights, for chrissakes.

[EDIT: The declaration was reportedly made on Thursday 25th March.]

Second, there’s the cumbersome mechanism for a human rights dialogue that is now in train:

36(4) The Supreme Court must not make a declaration of inconsistent interpretation unless the Court is satisfied that (a) notice in the prescribed form has been given to the Attorney-General and the Commission under subsection (3); and (b) a reasonable opportunity has been given to the Attorney-General and the Commission to intervene in the proceeding or to make submissions in respect of the proposed declaration of inconsistent interpretation.

(6) The Supreme Court must cause a copy of a declaration of inconsistent interpretation to be given to the Attorney-General- (a) if the period provided for the lodging of an appeal in respect of the proceeding in which the declaration was made has ended without such an appeal having been lodged, within 7 days after the end of that period…

(7) The Attorney-General must, as soon as reasonably practicable, give a copy of a declaration of inconsistent interpretation received under subsection (6) to the Minister administering the statutory provision in respect of which the declaration was made, unless the relevant Minister is the Attorney-General.

What century was this written in? Instead of the A-G, you know, just reading the fracking judgment on Austlii, the VCA has to wait until the expiry of the appeals period (28 days for High Court special leave applications) and then, if there’s no appeal, it has a week to deliver the declaration to the A-G – What are they going to do? Wait for it to float up Bourke St during a hail storm? – and then the A-G must give the declaration ‘as soon as reasonably practicable’ to the relevant Minister, unless (as appears to be the case here) the A-G is that Minister.  A human rights dialogue in ultra-slow motion.

And then there’s a further wait:

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

So, the Charter gives the A-G half a year to draft and publish what may well be a two sentence (or, perhaps, a two word) response. And that period only begins once the declaration formally lands in his pigeon-hole.

So, when is the A-G’s Charter homework due?  If there’s a special leave application to the HCA – on which more below – then the clock won’t start ticking until that is determined (a couple of months) and it will tick even longer if leave is granted and will never tick at all if the appeal succeeds. Things get trickier if there is no application and the appeal period expires, because the due date for the A-G’s response depends on how soon the declaration is made. Under Charter s.36(4)(b), the VCA has to allow a ‘reasonable opportunity’ for submissions – two days? two weeks? two months? – and then it has to deliberate. Even if a declaration was somehow made next week, then the clock wouldn’t start ticking until late April and that means it won’t stop ticking until the end of October. Any later, and it’ll be ticking after Parliament dissolves on 2 November 2010 (25 days before the coming fixed-term election.) And, regardless, it’ll still be ticking after the last scheduled sitting on 7 October 2010. So, does that mean the A-G is off the hook for this year? I don’t think so (though reasonable minds could, alas, differ) because Charter s. 37 requires a response ‘within 6 months’, so he can – and if there’s no choice, he should – just do it before the six months are up (or, alternatively, he could at least make the required publication in the gazette, which he can do anytime at all, or Parliament could even be recalled anytime except November.) Not that Charter s. 37  is enforceable anyway. But, if the A-G wants to put a response off until after the election, then special leave is his best option. (As will be noted below, Vera Momcilovic herself will almost certainly do this for him anyway.)

[EDIT: With the declaration actually being made surprisingly quickly on Thursday 25th March, the 28 day special leave period will expire on 22nd April.

If no application is made, then the six month clock starts ticking as soon as the A-G receives the declaration. That has to occur by 29th April, but could occur anytime 'within' that period. (It'll either be the 22nd, 23rd, 27th, 28th or 29th, as the other days are weekend or the ANZAC Day make-up holiday.) That means that the six months will be up between 22nd October and 29th October, safely before the dissolution of Parliament, but long after the last scheduled sitting on October 7th.The first sitting after the declaration reaches the A-G's desk is 4th May, but that's budget day. So, we may get the A-G's response on any sitting day between 5th May and October 7th.

If an application is made, then it will most likely be heard on June 18th. In the unlikely event that special leave is denied, then the declaration will reach the A-G by June 25th and a response will be due on January 25th, which is before the first sitting day of the new Parliament. So, the A-G will again have to respond between June 22nd and October 7th. If special leave is heard and rejected on May 28th, then the response will come between June 8th and October 7th. If special leave is heard and rejected on July 30th, then the s36(6)(a) expiry will occur on February 7th, which will make it possible for the response to be left to the next Parliament (which, if it follows the 2010 pattern, will sit in the first of February) and whoever happens to be the A-G then. Obviously, if special leave is granted - the most likely scenario, surely -  then the timetable will inevitably slip further into 2011, making a response by the next government more likely.]

And there’s another possible wildcard: Charter s. 49(2). Yes, the infamous Charter ‘transitional provision’ that will never die. The big question I’ve been wondering ever since I heard about this case is: what year was Vera Momcilovic charged? We know from the sentencing remarks that she was arrested on 12 January 2006, so it seems to me that it’s pretty damn likely that she was charged in 2006. And, on prevailing authorities, that means that the Charter ‘does not affect’ her later prosecution. Interesting, hey? Unless it turns out that she wasn’t charged until 2007 for some reason, then it looks like the whole case was a mistake, wasn’t it? Wouldn’t be the first misapplication of Charter s. 49(2) of course, as readers of this blog well know. But here’s a thought: maybe the A-G can pull a swifty and raise Charter s. 49(2) now, in response to the Charter s. 36(3) notice? Oooooh. But they wouldn’t do that. They’re model litigants.

Lawyers

So, what’s the take for the people who don’t read the Charter six times a day and just want to know what the law is now? Well, the main take is that a lot of previous Charter cases are now wrong.

The rejection of Poplar means that a couple of key cases were wrongly reasoned. The most notable instance is RJE, where two judges of the Court of Appeal, including (interestingly) Maxwell himself, ridiculously dodged applying the Charter in a case involving Victoria’s politically ultra-sensitive sex offender ‘monitoring’ law. The majority’s decision to reinterpret that law without reference to the Charter is now clearly incorrect. Also incorrect was Nettle’s initial attempt to do the same. But the result of RJE still stands, because Poplar’s ‘ordinary interpretation first, human rights second’ approach doesn’t actually change the results of cases, just the reasons for them. Another case that is similarly wrongly ‘reasoned’ is Barbaro, an especially idiotic VCA decision from last year, where the court simply declared that the Charter has no impact on bail decisions (without even bothering to say why that is. Apparently, the A-G’s lawyers provided reasons that were so convincing that they didn’t even need to be described!) Whatever. Barbaro‘s take-home message – ‘the Charter did not require any departure from the existing approach to the treatment of delay as an issue in bail application’ – appears to be a Poplarite heresy, because Momcilovic has now held that the Charter’s interpretation rule must always be considered when interpreting every Victorian statute. Interestingly, that was another judgment Maxwell joined in. I wonder what happened to him on the road to Momcilovic? A suspect it might have something to do with who’s sharing his donkey cart.

Momcilovic‘s rejection of Ghaidan is much more significant, as it means that a handful of cases where rights claimants had a Charter victory might actually have been wrongly decided. The most important example is Major Crimes. Warren (wrongly) followed Poplar, but that was neither here nor there. The big question is whether the major outcome of that case – Warren’s ‘interpreting’ s. 39 of the Major Crimes (Investigative Powers) Act 2004, which abrogated the privilege against self-incrimination and provided only a direct use immunity, so that it provided ‘derivate use’ immunity as well – is valid in light of Momcilovic’s rejection of Ghaidan in favour of ‘traditional’ interpretation. That is a hard question. On the one hand, I think that the reading can be defended as an instance of ‘traditional’ interpretation, because common law courts have long been willing to both read the privilege itself into statutes that compel questioning, and to read the full immunity into statutes that abrogate the privilege and are silent on immunity. On the other hand, the Momcilovic court emphasised the ‘purposive’ limitation to Charter s. 32 and, in particular, its reference to the purpose of the statutory provision, as opposed to the Act as a whole. That’s a big problem for Major Crimes, as Warren’s approach is much more harder to defend as consistent with s39′s purpose, as opposed to the purpose of the whole coercive powers scheme. [EDIT: But, hey, wait a minute. Charter s. 3 actually defines 'statutory provision' to mean 'an Act (including this Charter) or a subordinate instrument or a provision of an Act (including this Charter) or of a subordinate instrument'.  So, this distinction the CoA draws (at [75] and [76]) between the provisions and the ‘legislation as a whole’, which was based exclusively on a ‘deliberate choice of language’ in Charter s. 32(1), is bogus, isn’t it?]

However, it’s the rejection of Hansen that is probably the most stunning in terms of past cases, because it means that there are some cases where rights claimants lost where they should have won instead. Now that Hansen is wrong, it is wrong for a court to favour an interpretation that limits a right over one that doesn’t merely because the former interpretation is a ‘reasonable limit’. In Major Crimes and Nettle’s judgment in RJE, for instance, Warren and Nettle were wrong to spend any time contemplating whether the ‘ordinary’ interpretations of the statutes they were considering were ‘reasonable limits’ under Charter s. 7(2) (as they weren’t considering making a declaration.) However, that didn’t matter, as they found that the statutes in question failed the Charter s. 7(2) test anyway. Rather, the rejection of Hansen is consequential in cases where courts have found that the ordinary interpretation, while limiting rights, was a reasonable limit.

For instance, Kracke , the longest and most discussed pre-Momcilovic Charter case, has now been revealed to have been wrongly decided. Recall that Bell held that an interpretation of the MHRB’s review obligations that allowed an order to continue without a required review breached Kracke’s right to a fair hearing. However, he declined to read the provisions of Victoria’s Mental Health Act 1986 as meaning that non-reviewed orders are void, because he reckoned that the more ‘flexible’ approach of making the review requirement legally irrelevant was a reasonable limit to avoid the prospect of mass annulments of mental health orders. Momcilovic, in rejecting Hansen, says Bell should have put reasonable limits completely out of his mind and just tried to use ordinary interpretation to make the provision compliant. And that would have been a doddle, because the major case on ordinary interpretation, Project Blue Sky, says that the ‘void’ reading is always open as a matter of regular interpretation of provisions that state a rule but don’t specify a consequence. So, with Charter s. 32 properly applied, Kracke should have been free (at least temporarily) from being forced to take his meds (rather than just being given the consolation prize of a bit of paper.) Similarly, as the HRLRC points out, it seems that the most recent BellBuster, XYZ v Victoria Police on FOI laws, brought down the day before Momcilovic, may also have been wrongly decided, because Bell again read a Charter right (freedom of expression) generously but then refused to reinterpret the legislation because it was ‘reasonable’. (A complication here is that Charter s. 15(3) has its own internal reasonable limits test, raising the question of whether that is covered by the VCA’s rejection of Hansen.) Bell took over a year to write that freaking judgment. He should have waited two more days.

Also possibly wrong: the various (and mostly minor) decisions that followed the government’s dodgy idea that all statutory discretions are now limited by some sort of magicked-in ‘reasonable limits’ restriction courtesy of Charter s. 32. That’s Hansen and Ghaidan,  so it’s also wrong. (And good riddance too.) So, Lifestyles, another Bellbuster on VCAT EOA exemptions: wrong (or, at least, wrongly reasoned.) And the argument that tenancy law’s provisions on giving notice to tenants is subject to magicking in a reasonable limits obligation directly into the statute itself: wrong. Also shaken up a touch: Sabet! Ha! Remember that Hollingworth bought Tate’s three-stage test for Charter s. 38 claims, with the final stage being ‘Was any such limitation reasonable and justified within the circumstances set out in s7(2) (the justification question)?’. That stage, for reasons I suggested above, is almost certainly now gone. That being said, Hollingworth’s ruling that Sabet’s presumption of innocence wasn’t limited, which was the ratio of the case (for what it’s worth) still stands. Also potentially wrong: any decision by VCAT or the SCV or whatever where a rights-limiting decision by a public authority was justified using Charter s. 7(2), rather than Charter s. 38(2). There were lots of those, I recall. Another likely candidate for reconsideration is Barbaro, assuming that Charter s. 7(2) was part of the A-G’s unspoken reasons for arguing that the Bail Act is untouched by the Charter.

Finally, I’d also suggest that Momcilovic‘s focus on the intentions of Parliament when it enacted the Charter puts paid to the more adventurous arguments out there – notably, the argument about the typo in Charter s. 6(2)(b) – that have tried to read away some of the Charter’s more obnoxious limitations by relying on vague provisions about functions and purposes and the like. These simply could not survive a reading that treated the Charter as a regular statute.

All up, the big message for ordinary lawyers is that just about every pre-Momcilovic decision is now very dodgy authority indeed. Well, to be precise, courts and lawyers (and law students) need to steer clear of EVERYTHING said in the past about either Charter s. 7(2) or Charter s. 32. On the other hand, Charter pronouncements on neither of these things (like the meaning of any of the Part 2 rights, or Charter s. 49(2) or whatever) remain authorative.

Rights claimants

Another huge set of stakeholders are, of course, ordinary (human) Victorians who may want to pursue claims that their rights have been breached. Well, the short take is that there will be fewer actual wins in the post-Momcilovic world. Now that Charter s. 32 is no longer ‘special’, the Charter’s gonna be no use whatsoever in overturning or ameliorating clear but nasty statutory rules like s. 5 of the DPCSA. Just ask Ms Momcilovic.

However, lawyers shouldn’t write off the Charter for your clients just yet. There’s still:

• Charter s. 36: There’ll be lots MORE declarations of inconsistent interpretation now. Indeed, that’s why the VCA ditched Ghaidan. Less judicial solutions. More political solutions, though whether those solutions are rights-friendly remains to be seen.
• Charter s. 38: Momcilovic said nothing at all about the conduct mandate, the other great operative provision of the Charter. If anything, on my reading, the rejection of Hansen expanded Charter s. 38 by almost certainly stripping it of its Charter s. 7(2) limitations. So, there’s still plenty of scope for confining the executive. That being said, there are also still all those other nasty limitations, like Charter ss. 4(1)(j), 4(1)(k), 38(2) and 39(1). The conduct mandate’s a tough road. (Apparently, there’s another Bellbuster due on some of these matters, as they relate to tenancy law. Can’t wait.)
• Charter s. 32: Don’t count out the interpretation mandate quite yet. For starters, Momcilovic wasn’t entirely negative for Charter s. 32. While the rejection of Ghaidan substantially defangs s. 32,the rejection of Hansen actually gives the defanged rule significantly more to chew on, as the interpretation mandate is no longer subject to all that reasonable limits guff. If a provision limits a Part 2 human right, then that’s reason enough for a court to look for another interpretation, even if the limitation is reasonable. While the increased scope is counterbalanced by decreased power to ‘re-read’, don’t write off ‘traditional’ interpretation either. The thing that dipsticks like Jim Allan and Bob Carr seem to be incapable of realising is just how powerful traditional statutory interpretation has always been as a law reform tool. Look at the whole common law on mens rea and self-incrimination and judicial review, for instance. The place to look to see how powerful the post-Momcilovic Charter s. 32 will be is New Zealand, which also rejected Ghaidan. (Check out cases like this one for instance, where the NZCA held that a later, more specific provision (retrospectively applying a new sentencing power to bar parole applications) was subject to an earlier general provision  (barring retrospective increases in penalties.) A similar approach to retrospective penalty laws (like this one currently working its way through Parliament) would seem to be available under Momcilovic.)

And there’s another very positive side to Momcivilic for rights claimants. Now that Poplar, Ghaidan and Hansen are history, Victorian lawyers will no longer be burdened with all that  guff about ordinary meanings and reasonable limits and all that crap when they just want a court to consider the Charter when interpreting a statute. Now, it’s just a simple matter of telling the court of to interpret the statute where possible compatibly with human rights. Always worth a shot, hey? Indeed, if it wasn’t for bloody Charter s. 35, the Charter’s awful notice provision, then there’d now be no significant barrier to the Charter getting mentioned in nearly every Victorian judgment.

Which takes me to…

Rights respondents

Momcilovic confirms the almost total collapse of the government’s Charter litigation strategy. As I’ve documented on this blog, the government’s court (and SoC) strategy consists of:

• Finding any technical reason you can to read human rights narrowly.
• If that fails, claim that all legislation is inherently valid because the reasonable limits test is simply magicked in to everything, especially broad statutory discretions.
• If that fails, asserting that anything that furthers government policy is automatically a reasonable limit on human rights
• If that fails (or anyway), rely on any other technicality you can think of, like Charter s. 49(2), or Chapter 3 of the Constitution, or whatever.

Major Crimes was a fatal blow to the first part of this strategy. Momcilovic’s confidently broad reading of the presumption of innocence is a final nail in that coffin. Hands up who reckons that Hollingworth’s suggested use of the heading to Charter s. 25 to read down the presumption in Sabet will survive any VCA review now? In fact, the Momcilovic court didn’t so much as mention Sabet, even though it’s the only other decision to date on Charter s. 25(1). A well deserved snub. Momcilovic’s explicit rejection of Ghaidan similarly dispatched the second strategy to a timely grave.

And, the VCA, like Warren in Major Crimes, also trounced the third strategy. Guess what? ‘Demonstrably justified’ in Charter s. 7(2) requires actual evidence of justification. Who would have thought? Why, anyone who’s ever read a Canadian s. 1 case in their life. Indeed, the VCA expressly endorsed Oakes, to no-one’s surprise. No-one, that seems, except for the government’s lawyers, who seem entirely content to rock up at Charter cases and simply assert that rights-limiting laws are reasonable without evidence at all. Is it because they don’t have any evidence to support the laws that they nevertheless claim are reasonable? Or is it because they somehow think that the Charter’s main purpose is to give the courts an opportunity to heartily endorse whatever the government thinks is a good idea? The Canadian government learnt that hard lesson back in the 1995 tobacco advertising case (not that the human rights lobby seems to understand that.) And yet the Victorian government just won’t take ‘demonstrably justified’ in s7(2) seriously (or would rather fight against Charter arguments on technical grounds.) They just aren’t interested in proving to a court that Victorian statutes actually live up to the strictures of the Charter. That’s why they like Ghaidan and Hansen, because they outsource all the hard work to the courts (and any Victorian who dares to suggest that a Victorian statute is incompatible with their rights.)

What is so depressing about the government’s lawyers is that they aren’t advocating for anyone’s human rights. Nor are they even advocating for the Charter itself, i.e. the statute that parliament passed. Nope, what they are advocating for is government policy, be it the policy of whatever statutory provision is up for consideration, or the government’s policy on the Charter, or just the government’s desire to present itself as active and modern and its fear that the Charter might be the next Myki. And what that means is that the government’s lawyers have exactly the same job as Peta Duke, Planning Minister Justin Madden’s media adviser, who’s the most recent scapegoat for all this sort of governance. Duke didn’t see the proposed ‘consultation’ on the Windsor redevelopment as a sham at all; instead, it was just a way of managing the planning process so that its suits the government’s agenda (something that reminds me of a certain other consultation.) Likewise, the government’s lawyers are content to feed nasty Charter arguments to the courts – like the mentally ill not having any rights to a fair hearing at reviews of their treatment or the forced medication itself not limiting their right to security of the person – not because they believe in them, but simply because they seem to be arguments that best support the government’s policy imperatives and fears. This isn’t lawyering, at least not of the ‘officer of the court’ / ‘model litigant’ variety.

But, just like the spin doctors can’t always fool the public, it also turns out that, while policy-driven Charter arguments can fool some judges, they can’t fool all of them (at least, not all of the time.) The VCA itself was scathing of the willingness of the government’s lawyers to advocate Ghaidan despite Hulls’s statements to Parliament that the Charter is nothing radical:

In light of these clear statements to Parliament, it is puzzling that the submission advanced on behalf of the Attorney-General in this proceeding should have propounded such a different view of s 32(1).

Puzzling indeed. Is it because the Attorney-General (wittingly or otherwise) misled Parliament, or because he’s since changed his mind, or because he isn’t really aware of what the lawyers speaking on his ‘behalf’ are saying? Despite all of that, the government’s final strategy – relying on other technicalities scatted throughout the Charter by the drafters – is still a live one and (given the Charter s. 49(2) angle) may well be used in this case. But that’s it. Time for a new strategy, don’tcha reckon?

The A-G’s lawyers have a special role under the Charter, because Charter s. 35 requires that they be notified whenever someone raises a Charter argument in a higher court. Just about everyone other than those same lawyers has roundly criticised Charter s. 35 as being a significant impediment to rights claims. Wednesday’s ruling reveals another problem, as it turns out that the main thing Charter s. 35 has produced has been  two years’ worth of totally wrong advice to the higher courts, from VEOHRC (which backed Ghaidan), but especially from the A-G (which backed Poplar and Hansen too.)

Rights nerds

So, what about the ‘big picture’? By that, I mean the question of whether or not the Charter will achieve its aims and whether similar statutes will be enacted throughout Australia, especially federally. I’m far from convinced that there are all that many people who actually care about this, but anyway…

The most obvious angle is that Momcilovic pulls the rug out from under Jim Allan’s argument that human rights statutes hand lawmaking powers from the elected to the unelected.  I can just see him opening up Momcilovic and seeing the headnote – ‘Ghaidan v Godin Mendoza [2004] UKHL 30 not followed’ – and scowling: ‘Drat! Those pesky judges! They did this to spite me!”

But, two seconds later, he’ll think up his next angle for an Australian op-ed, such as:

• Those pesky judges almost took over Victoria, but my blistering recent op-ed saved the day!
• Those pesky judges are still going to take over Victoria, but they’re going to be very sneaky and pretend that they aren’t going to follow Ghaidan. But they will. They ALWAYS do. Why? Because I am never ever wrong.
• You know what the real problem with rights statutes is? Declarations of incompatibility, like the one in Momcilovic. Just you watch. As soon as that thing reaches Spring St, the whole government will give up the lawmaking job completely and invite the judges over to redraft its legislation. Just you wait and see. (If this doesn’t happen, it’s because I wrote this blistering op-ed.)

In other words, nothing will ever change the anti-Charter mob’s minds or arguments. They’ve never cared less about evidence, which is why they never ever talk about interpretation in any non-UK parliamentary rights jurisdiction They’ll just pretend Victoria doesn’t exist, like always. (And the ACT. Who???)

Alas, I also see something analogous happening with the pro-Charter lobby. Sure, they may well point out that Momcilovic has put the kybosh on the Jim Allan Project. But they won’t sing too loudly, because Momcilovic confirms that the Charter will have virtually no effect on the big issues that are the only thing the rights lobby really cares about, like terrorism and refugees and socio-economic rights and all that. Without Ghaidan, which most of the lobby hoped was exactly the trojan horse the anti-rights lobby said it would be, the Charter will only fix the devils in the details. That’s a prospect that is disastrous for the rights lobby’s base. Momcilovic confirms that the only way to bring a rights charter in the overseas tradition to Australia is to do it overtly, and that’s not a message that any of the rights nerds will want to broadcast.

A specific Momcilovic angle the media want to know about are its implications for the federal Charter project. As my above discussion makes clear, I actually don’t think there are many implications, because I don’t think any of the players in that game cares less about what is actually happening on the ground in Victoria. To the extent that the Momcilovic message – that rights charters won’t shake up the legal system much at all – filters through, it takes the fire out of both sides of the argument. One matter that I think Momcilovic may cast light on, for anyone who cares to look, is the internal debate in the National Human Rights Consultation Committee between the majority (who wanted a ‘Human Rights Act’) and the minority (who didn’t want an Act, but wanted the key provisions: a defined list of rights, an interpretation mandate, a conduct mandate and parliamentary scrutiny.) The curious thing about this debate is that both sides actually want the same provisions enacted. I think the difference is that the majority wants an Act, because they want something that might grow into more than a bunch of provisions. But Momcilovic renders all of that moot. That’s sad for the Trojans (or is it the Greeks? Yes, it’s the Greeks), but it’s comforting news for those who just want the Feds to follow Victoria. If media reports are accurate and cabinet has opted for the minority view, then they’ve opted to adopt the post-Momcilovic Charter. (For what it’s worth, my speculation is that Frank Brennan is the minority and that he was the only one of the Committee with the foresight to predict both Momcilovic and the federal cabinet’s view.)

Alas, there’s another, much baser, political angle: the actual outcome of Momcilovic – a declaration that DPCSA s5 is a breach of human rights – is a major win for…. suspected criminals. Yes, those people. Yeeeeech. The anti-Charter mob can now make a big hue and cry about how it’s now a ‘criminal’s Charter’. (They’ll studiously avoid mentioning that the actual right at stake is the presumption of innocence, which, while not universally popular, has a certain cachet even with the tabloid readers.) And what will be the pro-Charter lobby’s reply?: ‘No, it isn’t a criminal’s charter. You can see that because that nasty trafficker Vera Momcilovic’s conviction still stands! And Victoria’s nasty reverse onus still applies to all Victorian drug trials. Hooray!’ Well, they won’t actually say that (I hope.) But, I suspect, they will stay pretty quiet on that substantive issues in Momcilovic and, instead, blather on about the generic rights dialogue. To see what I mean, take a look at the media releases put out by VEOHRC on Major Crimes, which is subject to the same angle. See any? Nope. And that’s a case, unlike this one, where the Commission had a huge victory. There’s only one reason why they didn’t want the media to know about that victory, isn’t there? And look at the Victorian lobby’s ‘good news stories‘ about the Charter. Don’t see any stories about criminal process rights there? That’s because those are ‘bad news stories’.

Well, pro-Charter folk, if you cringe because this is a case about criminal defendants’ rights, then you’re just as much spin doctors (and just as little lawyers) as team VGSO. And, more importantly, you aren’t pro-Charter or rights lawyers or lobbyists or whatever at all. Because human rights are meant to be applied without discrimination. All of them. Or else they aren’t human rights at all, but just a set of boutique political objectives, just like the anti-Charter folks have always said. I’ve previously given kudos to the Commissi0n for fronting up at Major Crimes and making the hard arguments about self-incrimination. But I won’t give similar kudos to VEOHRC and the HRLRC for turning up at this case, because both of them chose to limit their arguments to Charter s. 32, leaving the hard yards of arguing that DPCSA s 5 was incompatible with Charter s. 25(1) and not a reasonable limit to Vera Momcilovic (the rights claimant) herself. I realise that the Charter s. 32 issue was the one with the broadest implications for the future, but why would two of Victoria’s key players on human rights opt not to cover the specific rights issues at stake too? If the right at issue had been Charter s. 8, or the rights of kids, then both of these entities would have been all over the issue like a rash.

Need some tips on how to actually celebrate criminal defendants’ rights? That’s next.

Criminal law nerds

Charter ss. 7(2) and 32 are not the only Charter provisions that Momcilovic ruled on. There’s also this one:

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

The VCA’s major ruling was that this right was unreasonably limited by the following provision:

5 Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary.

It’s no surprise that a reverse onus provision in a drug law finally galvanised the VCA into working out how the Charter works. Such reverse onuses are a mainstay of landmark rights statutes. Think Oakes, Hansen, Sheldrake, that Hong Kong judgment on remedial interpretation.

DPCSA s5 is an especially nasty reverse onus. Its nastiness is simple to explain in lay terms. Do you share property with anyone else (even a little)? Like a flatmate, or a partner, or your children, or even just on occasional visitor? Well, if they have some drugs in a common area and the police find it, then they can charge everyone who shares the property with possession of those drugs (and, if there are enough drugs, trafficking.) And you will be found guilty, at least of possession, unless you can prove (on the balance of probabilities) that you didn’t know about the drugs. Chances are, the only way you’ll be able to prove your innocence is to testify that it was the other person (your friend, your partner, your kid, whatever) who’s the drug possessor or trafficker. Victoria’s new Evidence Acthas a provision designed to stop family members from being forced to testify against eachother, but DPCSA s5 effectively takes away that choice in the case of shared property owners, by forcing them to choose between testifying against their flatmates or going straight to gaol (and some serious prison time) as a drug trafficker. Not only that, but even if you did testify in these circumstances, you may well still end up in gaol, because if the court doesn’t believe you, or even if the court doesn’t know who to believe, then you’ll be found guilty. Mix in the souped-up prison sentences for those charges – and contemplate the complete terror that that Filipino with the Iced Tea must have felt this past weekend – and you can see how threatening this sort of provision is to everyone.

And if that doesn’t convince you, maybe the fact that Victoria is the only Australian jurisdiction to have this provision will. Despite all this, my biggest fear while we were all waiting for Momcilovic - based on all the Charter disappointments to date – was that the VCA would actually be the first modern court to rule that a drug reverse onus was reasonable. I can name quite a few Victorian judges (one just retired) who I reckon would cheerfully make such a holding. But, fortunately, not Maxwell, Ashley and Neave. To the contrary, their judgment was a stunning repudiation of reverse onuses in several respects:

First, they ruled that DPCSA s5 infringed Charter s. 25(1), not only in its application to the crime of possessing a drug (where possession is an element of the actual offence)  but also on the crime of trafficking, where possession does no more than create a ‘prima facie case’ that the defendant intended to traffick. The latter ruling appears to bring evidential onuses within the sphere of Charter s. 25(1) (though I’d say that that’s only true for evidential burdens on elements of offences, as opposed to (genuine) defences, provisos, etc.) Amazing.

Second, the VCA has more or less completely destroyed a major plank of the usual justification for reverse onuses: the need to ease the fundamental rules of proof in trials of especially heinous crimes. The VCA noted that this argument doesn’t wash, because the presumption of innocence is actually more important for especially bad crimes. And, they held, that doesn’t mean that reverse onuses are OK for less serious crimes, because that just means that any needs of the law enforcement end are less important too.  For instance, the VCA scorned the fact that DPCSA s5 is more help for the less serious possession crime than the more serious trafficking crime.

Third, the VCA, like every other similar court since Oakes, has affirmed that Charter s. 7(2)’s ‘demonstrably justified’ requirement requires actual evidence, not just assertions (except in cases where those assertions can be accepted as a matter of common sense.) So, stand by for factual trials on these issues in this future (and, perhaps, evidence-based arguments in statements of compatibility. Whoa!)

However, the most stunning part of Momcilovic wasn’t anything the VCA said, but rather Chief Crown Prosecutor Gavin Silbert’s amazing admission at [145]:

Far from submitting that the imposition of a reverse legal onus was essential to the task of successfully prosecuting trafficking offences, senior counsel candidly acknowledged that a change from a persuasive onus to an evidentiary onus would make little difference. Pressed by the Court, counsel eschewed any suggestion that a change of the onus from persuasive to evidentiary would make a major or demonstrable difference to drug trafficking prosecutions. As to the need for evidence, he submitted that empirical evidence of the efficacy of the persuasive onus would have been virtually impossible to obtain. It was mere speculation, he said, whether the outcome in a particular trial would have been different had the prosecution not been able to rely on a reverse legal onus.

Isn’t this incredible? A major, hideous Victorian law, used routinely in its courts and, no doubt, in plea bargaining, turns out to be completely unnecessary the moment that its chief beneficiary is asked in court to justify it.  Now there’s a rights dialogue in action! It’s Silbert’s declaration, not the VCA’s, that will put the most pressure on the government to repeal DPCSA s5. And it wouldn’t have been made, it seems, without the Charter.

My sole disappointment with Momcilovic is Part II of the judgment, which begins immediately after the proposed declaration (and which just about no-one else will read.) That’s where Vera Momcilovic put all of her non-Charter arguments that her trial was bad and the VCA gave them all short shrift. Her arguments were basically that the trial judge kept the issues too simple, by only directing the jury on the issue of her knowledge of the drugs and not directing the jury on the array of other legal arguments that could also have led to her acquittal whether she intended exclusive control of the drugs (with her partner); whether she might be guilty of only the lesser included offence of possession (because she didn’t intend to traffick); and whether she reached an agreement with her partner to traffick (joint commission.) On the latter point, the Crown actually conceded at the appeal hearing that there should have been a direction, because the Crown’s case was based (initially at least) on joint commission. (Do you get the feeling that Gavin Silbert’s heart just wasn’t in this case? That maybe Vera Momcilovic’s prosecution maybe never have happened at all?)

But the VCA rejected all of these arguments for just one reason: that Momcilovic herself chose to focus the trial solely on the question of her knowledge of the drug. The judges quoted her trial counsel as candidly conceding:

…[I]f I can fairly say, your honour, I haven’t run the case on the basis [of] anything other than the element of possession… It’s not one of those cases where I’ve run an argument, ‘We didn’t possess it but if we did possess it we didn’t intended to sell it.’ That would have been forensic suicide as a Isee it and I haven’t run that.

The VCA relied on this defence concession to reject even the Crown’s concession that the true issues where broader than just knowledge! In doing so, the judges completely failed to recognise (or at least mention) that the sole reason it would have been ‘forensic suicide’ for Momcilovic to argue an alternative case was because she was the one who bore the burden of convincing the court that she was telling the truth, thanks to DPCSA s5. Unlike most criminal defendants, Victorian drug trafficking and possession defendants are effectively denied the ability to argue alternative cases and must instead put all their eggs in one factual basket. Maybe, given their rejection of a strong view of the Charter, there’s nothing the VCA could do about that (though the ‘substantial miscarriage of justice’ ground in Victoria’s appeals law is ripe for a little Charter-friendly traditional interpretation.) But you’d think that they’d at least see fit to mention the costs of (the soon-to-be-declared incompatible) DPCSA s5 in this context (and, perhaps, remind the Crown of its own obligations under Charter s. 38 with respect to drug defendants’ presumption of innocence.) My guess is that this bit of the judgment was written by a different judge and the others didn’t pay it enough attention.

It’s funny how all that high-falutin’ Charter stuff seems to distract judges from the actual individual merits of the case. A similar thing happened in Kracke too, I reckon. And, on that note, let’s get back to the case itself.

The parties

There were five parties before the court in R v Momcilovic and none of them won:

• Momcilovic herself argued that (a) s5 DPCSA breached Charter s. 25(1); (b) it should be re-read down. She won on (a) but lost on (b)
• The Crown argued that (a) s5 DPCSA didn’t breach Charer s. 25(1); (b) if it did, it should not be read down. She lost on (a) but won on (b)
• The A-G argued that (a) s5 DPCSA didn’t breach Charter s. 25(1); (b) if it did, it should be read down. He lost on both (a) and (b), just like the government’s lawyers did in Major Crimes.  Quite the losing streak there.
• The Commission didn’t make any submissions on whether s5 DPSCA breached Charter s. 25(1) (why not?) but argued that if it did, it should be read down. It lost on that (on the back of winning a similar argument in Major Crimes.)
• The HRLRC was the same. But the HRLRC did have a big win in that it, alone, argued against Hansen, and it won that point. Well done! That being said, the HRLRC also lost on Ghaidan big time, just like everyone else except the Crown.

But the case isn’t over yet. There’s at least one more roll of the dice: the Hight Court. Who would benefit from such an appeal?:

• Vera Momcilovic. If she can convince the HCA that Ghaidan applies in Victoria, then she’ll get her trafficking conviction quashed (unles the HCA also decides both that Hansen is right and that s5 DPCSA is reasonable.) All she has to lose is the declaration of inconsistent interpretation (which isn’t totally worthless. See below.) So, I reckon it’s dead certain that she’ll seek leave to appeal (and, hence, that the A-G won’t have to respond to any declarations this year.)
• The Crown. The Crown got the outcome it wanted, which is the preservation of s5 DPCSA (and, I guess, Momcilovic’s conviction.) All there is to gain from an appeal is overturning the declaration, but the Crown will only do that if it thinks the government will change s5 DPCSA  in response. Moreover, the Crown, to win, will have to convince the HCA that s5 DPCSA is a reasonable limit and that’s virtually impossible because of Silbert’s concession at the VCA.
• The A-G. The A-G, I’m sure, or at least his lawyers, would love to revive Poplar, Ghaidan and Hansen somehow. But that would involve him going to the HCA basically trying to get Momcilovic’s conviction overturned. To avoid that, the A-G will have to bank on also convincing the HCA that s5 DPCSA is reasonable, but that’s hard because of Silbert and the government’s own slovenly approach to putting evidence before the VCA about the need for a reverse onus. Maybe, though, the A-G will go for a technical argument, like 49(2) or the Constitution or something. Anyway, as I noted earlier, the A-G might seek special leave just to ensure that no Charter s. 37 response to the declaration is required until after the election, though I think Momcilovic will do that job for him.
• VEOHRC. I doubt that the Commission will want the HCA to go anywhere near the Charter. None of the HCA judges know a thing about such statutes (and some of them are outright hostile.) And the Commission has no resources. It won’t appeal but will presumably stay onboard if someone else does.
• The HRLRC. Just an amicus, so no appeal there.  Otherwise, same as the Commission, except that the HRLRC’s lawyers would love to appear before the HCA for any reason, I reckon.

I won’t look at what the HCA might actually do on an appeal, as that’s imponderable for so many reasons (mostly as it makes me sick to the stomach to imagine Dyson Heydon’s judgment.) That being said, surely, if someone does seek special leave, then the HCA will grant it.  The wider implications of the case are crystal clear, not only for Victoria and the ACT (who?), but also all those jurisdictions who are contemplating following the Victorian model.

It’s also possible Momcilovic’s reasoning could be overturned without a HCA appeal, if another suitable case arises in Victoria. Frustratingly, Maxwell only convened a three-judge court to hear this case, despite its obvious landmark status. WTF? Why on earth would he do that? Perhaps he thought that a five-judge court might swing the wrong way? Regardless of why, Maxwell’s means that there’s a reasonable chance that the other appellate judges who were shafted by the Momcilovic court – Bell, Nettle, maybe Warren  or Weinberg – will clamour for a reconsideration by a five-judge bench, a process used to speedily correct major errors in appellate judgments. However, even if that happens, though, the law will only change if a majority of the new bench is willing to hold that Momcilovic was clearly wrong and also reject comity with the Fearnside decision by the ACTCA (who?)

In any case,I think it’s worth observing that Maxwell, Ashley and Neave did a terrific job in appeal-proofing the anti-Ghaidan part of their ruling. First, the judgment was unanimous. Second, it relies heavily on very orthodox reasoning and lots of quotes from the HCA, including a recent judgment from French CJ. Third – and this only matters in a direct appeal – they also cleverly ruled that, even if they were wrong on Ghaidan, DPCSA s. 5 still couldn’t be reinterpreted Lambert style. So, all up, I think at least the anti-Ghaidan part of Momcilovic is here to stay.  It’s possible that Poplar or Hansen might still make a comeback in Victoria, as the VCA’s reasoning rejecting them is more vulnerable. It’s also possible that the declaration might be overturned in the HCA (for instance because the HCA doesn’t buy the VCA’s view that the presumption of innocence was breached by the mere activation of a prima facie case for the trafficking charge, which was the only charge actually in play in the trial.) But without a return of Ghaidan, we’ll all still be living firmly in a post-Momcilovic world.

And, while I’m very upbeat about that, there’s clearly one individual for whom that’s a disaster.

Vera Momcilovic

Vera? Vera? What has become of you?

Vera Momcilovic, forced to prove her innocence at her own trial thanks to DPCSA s5, testified that she didn’t know about the drugs the cops found in her flat – they were in a fridge she never used and cupboards she never looked in – and the jury didn’t believe her. Nor did they believe her partner, who put up his hand as the real (and sole) trafficker of the couple. That is, the jury didn’t believe them on the balance of probabilities. Did their testimony raise a reasonable doubt about Momcilovic’s knowledge and therefore her guilt? Thanks to DPSCA s5, we’ll never know.

In some respects, Momcilovic had an easier task than many alleged traffickers, because she is, or at least was, a ‘good girl’.  (According to the VCA, her credibility was shaken by her initial denial, soon retracted, that she knew of her boyfriends priors.) Nevertheless, her full professional history (according to the then site of the patent firm she used to work for) would, if the jury knew about it, have been mixed blessing indeed for someone who is subject to DPCSA s.5:

Vera is the latest addition to the team. Her extensive study history includes a Bachelor of Laws from Monash University and a Graduate Diploma of Intellectual Property Law and Master of Laws majoring in Intellectual Property from Melbourne University. Vera has also further completed a Bachelor of Science Honours degree from Monash University majoring in chemistry and a Graduate Diploma in Drug Evaluation and Pharmaceutical Sciences from Melbourne University. Vera is also a Registered Patent Attorney and is a Fellow of the Institute of Patent and Trade Mark Attorneys of Australia. Prior to joining IP Wealth Vera worked for a boutique Patent and Trade Mark Attorney firm and most recently in an IP Management and Legal role where she serviced numerous Divisions of a large Australian Research Organisation. Vera is a member of BNI. With so many qualifications to remember, its no wonder that Vera requires a short black with one sugar in the morning followed by more long blacks throughout the day.

Oops. That’s a few too many qualifications! A ‘Graduate Diploma in Drug Evaluation’, eh? Sounds useful for working out if that’s methamphetamines or Iced Tea in the fridge. (Well, maybe not.) And, hey look!: she’s a Melbourne Law School graduate. I bet there’s already a banner headline on the MLS website: “MLS alumnus wins landmark human rights declaration!’ Hmmm. Must be waiting until the VCA actually makes the declaration, I guess.

Part III of R v Momcilovic reveals that the Charter didn’t leave her completely empty-handed. Despite there being so little for the Crown to actually prove in her trial, the sentencing judge in the County Court, Damian Murphy, still managed to bugger up the all-important calculation of how many drugs there were that Momcilovic was guilty of (not being able to prove that she wasn’t) possessing. She was sentenced for trafficking 700g, instead of 350g, and that meant that the VCA had to resentence her. And that turned out to be a very generous resentencing, reducing her custodial sentence to time served (which itself was a mere 2 months because the VSC generously bailed her pending her Charter challenge back in 2008.) The VCA confirmed that this generosity was thanks to the Charter. She should have gotten more additional time in the slammer, but because,’[f]or reasons beyond her control, her conviction appeal became an important test case’, so she got some extra mercy for being kept waiting (albeit, on bail.) Now, there’s an incentive for criminal defendants to bring Charter cases! I wonder if the many victims of Bell’s insanely lengthy deliberations can claim a similar bonus.

Nevertheless, she remains a convicted drug trafficker. However, thanks to this case, that particular conviction now has an * next to it that reads “*This conviction was obtained at a trial that breached the defendant’s human rights”. Even though that has no legal effect, I reckon it’s still worth something. For instance, I imagine Momcilovic would love to start work again as a patent lawyer, but standing in the way of that is the Supreme Court’s Board of Examiners and its pesky rules about good character. S0, here’s what she could argue: you, the Board, shouldn’t hold my conviction against me, because it was obtained in breach of my human rights. That’s not just me saying that. It’s the highest court in Victoria. Your court. And that’s not just any human rights. It’s a human right that both the common law and Parliament say they are committed to protecting. So, as a Board that’s devoted to protecting all those things, you shouldn’t use my trafficking conviction – one which was never actually proved in court, but which I merely failed to disprove – against me. Ha! Another possibility is that she could take her case to the UN Human Rights Committee, raising her presumption of innocence under Article 14.2 of the ICCPR (once she loses her HCA appeal.) It’s hard to see how Australia could even begin to defend itself in such an application, given the VCA’s ruling. Unlike the VCA, the UNHRC’ttee has the power to order the Australian government to give Momcilovic a remedy. Alas, it also lacks any powers to enforce such rulings, which the Australian government is quite happy to ignore.

So, aside from the HCA, there’s really only one person who can give Vera Momcilovic the justice the VCA says she deserves.

Rob Hulls

The A-G. Not the S-G, although at times it’s hard to know the difference. Deputy Premier Rob Hulls. The whole Charter ball rests firmly in the court of the one man responsible for the Charter in the first place.

I don’t have much to say here, because I’ve said it all before. If Hulls wants to ensure that his Charter outlives his political career, then he has only one option: to embrace the Charter, even when it embarrasses his government or carries a political cost. Celebrate the VCA’s identification of a truly awful law on Victoria’s books (and one that even Victoria’sChief Prosecutor thinks is a dud.) Proudly introduce a bill into Parliament repealing it (and other reverse onuses in drug laws and elsewhere that similarly prove to have no purpose) and make it retrospective too. And proudly tell Victoria that you’re doing it because the government values Victorians’ human rights above everything else.

And, if he won’t do that, then use the Charter s. 37 response as an opportunity to announce a bill repealing the Charter. There’s no middle ground on this one for anyone of principle.

But, of course, we know that neither of these things will happen.  Indeed, according to the media, Hulls has already announced (without even waiting for the VCA to make the declaration, let alone for it to turn up in his pigeon-hole) that ‘the law at issue in this case would be considered in a review now under way into the Drugs Act’. Strange,  no such review was announced in either Justice Statement 2: Electric Boogaloo (which is currently mysteriously offline. I can’t recall anything about a reform to the DPCSA from back when the statement came out. There is a major reform of the Crimes Act – slated to run for several more years – but there wasn’t any indication that it extends to the thousands of other criminal offences in the Victorian statute book) or the 2010 Statement of Government Intentions or Justice’s Strategic Priorities for 2009-2010. Anyway, brace for some vague tinkering with the DPCSA that the government will cravenly claim that they were going to do anyway. See, the Charter works, they’ll say. Because it doesn’t really do anything.

Actually, there’s another response that Hulls could make to Momcilovic. He could always introduce a bill to change the Charter itself so that it matches what his lawyers argued in court. Change Charter s. 32 so that it matches the UK’s s. 3 exactly. Change the definition of ‘human rights’ so that it includes the reasonable limits test every time. And, be honest about it in Parliament. And, if Hulls won’t (or can’t) do that, then amend the Charter to match what the Momcilovic court held: that it’s just an ordinary statute. It wouldn’t take much. In the UK, they’re thinking of renaming their Act to be a Bill of Rights, because that’s what their Act really is, post-Ghaidan. Hulls should do the opposite: change the Charter’s name to the ‘Victorian Human Rights Act’.

The VHRA. Now, that’s a pronounceable acronym. And an eerily appropriate one too.

And that’s one more thing Hulls could do and he won’t need an Act of Parliament to do it. The VCA has revealed that at least one Victorian stands convicted of a crime in Victoria despite her guilt never being proved ‘according to law’. Isn’t that what pardons are for?

Charterblog

Well, it’s been fun doing this post. Nearly 12000 words, written quickly, straight into the public domain, without waiting nine months for traditional publication. I still can’t say enough good things about blogging. It’s a buzz. And Momcilovic is a small step towards the one thing that I said might bring Charterblog back: a more mature Charter jurisprudence. We’ll see if it sticks.

That being said, I remain too busy to blog in the way I did in 2008. Amongst other things, there’s the new JD criminal law course, two books to write, a bunch of articles, a newborn and a coming trip to Japan with my four-year old. So, that’s it for me until something even bigger than Momcilovic happens. Maybe the High Court appeal?

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.]

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.

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?

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- [RE-EDIT: fourth!]] 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: [RE-EDIT: Actually, there are three newcomers now.]]

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.

[RE-EDIT: And it's taken me until the end of 2009 to notice two more cases that have popped up on Austlii:

R v Rich (Ruling No 19] [2008] VSC 538 is one of twenty rulings that became unsuppressed after Hugo Rich (neé Dietrich) was convicted of killing a bank security guard. This ruling was his bail application, which, like the earlier (published) Rich case, rested on his complex computer needs. This time, he wanted bail to access secret data on the internet (without prison technical folk doing it for him and ‘accidentally’ deleting it) and claimed that those amount to the requisite ‘exceptional circumstances‘ that a charged murderer needs to get bail. Justice Lex Lasry was understandably skeptical about Rich’s computer needs and ruled that avenues than bail were available for Rich to get what he needed. Rich’s lawyer pressed the Charter , presumably Charter s. 24. One problem for this claim was Charter s. 49(2), as Rich was charged in 2005, but Lasry was willing to overlook that, in a nod to Rich’s argument that the ‘commencement’ of proceedings for the purposes of Charter s49(2) might be arraignment (which occurred in 2007. Hooray, Lasry got the date right!) But Lasry could afford to be generous, because he had already earlier dodgily ruled that the Charter doesn’t affect bail anyway. Here Lasry extended that ‘reasoning’ from delay arguments to fair trial arguments. (Alas, the Court of Appeal proved to be still more flippant about bail in 2009.) I guess that we’ll hear more about Rich’s Charter arguments when he appeals, sometime in 2010 or 2011.

Victorian Netball Association Inc [2008] VCAT 2651, unless a secret judgment emerges over a year late, is the real final decision of the Charter’s inspirational first year of operation. Somewhat fittingly, it’s yet another grant of an EOA-exemption by VCAT Deputy Prez Cate ‘Rubber Stamp‘ McKenzie. In this case, she paid close attention to the less generous approach of Marilyn Harbison in another Charter sport case, Royal Victorian Bowls Association Inc, and it seems to have tempered her. (Perhaps she’d be further tempered by 2009′s EOA-Exemption Bell Buster.) The more immediate backdrop was prior VCAT rulings about whether the standing exception for gender in sport where there were physical differences applies to 12 and 13 year-olds playing netball. Overturning an earlier decision (which wrongly focussed on skill, not strength), President Morris held that the standing exception didn’t apply, but then invited the netball authorities to seek (and then granted) a specific exemption on the basis that making girls play against more adept (and somewhat stronger) boys would drive them from the sport.

Granting exemptions to stop boys ‘swamping’ girls is right up McKenzie’s alley, of course. The catch is that, this time, the argument had to be that the 15,600 girls playing at 12/13 level would have to be swamped by… 343 boys! No worries!: boys’ minor physical advantage (at that age) was enough in combination with their aggressive, competitive nature (as opposed to social, fun-lovin’ girlies) and the fact that girls just don’t like playing with nasty smelly boys. McKenzie played the usual lip service to the Charter, but held that making the 343 boys stick to their own court was ‘reasonable’, because driving girls from netball would lead to obesity and Victorian Netball had started a ‘Fast and Furious’ tournament targeted at boys (presumably because girls are Slow and Sensuous. That doesn’t exactly fit with my one and only experience of mixed netball, an event of which I still bear scars, both physical and emotional.) (And here‘s how ‘Fast and Furious’ works: under 11′s boys are offered a choice of playing in mixed contests against under 11s girls, or playing in the under 14s boys only tournament. I bet that’ll be attractive to 11 and 12 year-olds.) The slight tempering is that McKenzie tightened the reporting requirements (whereby Victorian Netball had to keep a close eye on sudden changes in the boy-girl difference) and cautioned that the exemption may not be granted next time. No rubber stamps!

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.

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.)

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….)

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.

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.