The new parliamentary dialogue

Today’s Alert Digest from SARC (whom I advise, but that’s it) has two interesting instances of the new sort of dialogue that the Charter has caused.

One  is a second instance of SARC reporting that a statement of compatibility overstated the rights issues raised by a bill. In this case, like last time, the disagreement concerns the Charter’s right to freedom of movement (which, unlike freedom of expression, has no qualifications for other laws or the public interest):

12. Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.  

The statement of compatibility to a bill that overrides Melbourne City Council’s attempts to evict an international flower show from Carlton Gardens thus not only described the potential for the flower show to limit Victorians’ freedom of movement (i.e. in and out of the gardens in the month when the show is on) but ran through a full Charter s. 7(2) analysis about how such a limit is compatible with our free and democratic society. Oy. On some views, a similar analysis is needed every time a traffic light turns red. I think that such analyses trivialise the Charter Continue reading

Let the dead speak

pmn_marea_narrowweb__300x4050.jpgThere is a heartbreaking but also heartening story in today’s Age about the family of 70-year-old Marea Yann, who was bashed to death in 2003. A jury recently acquitted her son-in-law of the murder, despite evidence that he had allegedly confessed to the killing and a claimed motive concerning a dispute with his wife / her daughter. What is heartening is that the victims have responded with a quite sensible call: for reform to Victoria’s evidence law to permit the victim’s voice to be heard. Not, mind you, via a ouija board, but rather through exceptions to the hearsay rule. In Victoria, such exceptions are on the way in the form of a bill enacting Australia’s uniform evidence legislation, which notably liberalises the hearsay rule  with exceptions in criminal cases for when the speaker is ‘unavailable’, for example because he or she is dead:

65 Exception: criminal proceedings if maker not available

(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:…

(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or

(c) made in circumstances that make it highly probable that the representation is reliable…

Andrew Palmer and I were both quoted in the article as noting that the new exceptions (notably 65(2)(b)) would seem to cover at least one of the pieces of evidence rejected in the trial, where the victim received a phone call and then told someone that it was her son, threatening to kill her.

But there’s a need for caution, too. Continue reading

The dreaded passing mention

the-castle.jpgSo far, there’s been only one Victorian case that actually analysed the Charter. All the others simply referred to the new Act in passing, e.g. observing (in a discussion that raises question of privacy) that ‘The right to privacy is now provided for in the Charter of Human Rights and Responsibilities Act 2006’ or simply footnoting a section of the Charter that corresponds to some legal right mentioned in a judgment. Such passing mentions to the Human Rights Act 2004 have been similarly common in the ACT.

These passing mentions might seem innocuous or even evidence of some sort of cultural change in our courts.  But I think they are bad law, akin to the famous argument that the Constitution has a vibe, and even dangerous. Yes, dangerous.

As this blog has noted several times, some passing mentions merely dismiss the relevance of the Charter, but do so without a careful reading of its potentially more nuanced and relevant terms. However, most passing mentions seem to indicate that the Charter is somehow relevant. The tenor seems to be that the simple passage of the Charter has transformed Victorian law by ‘giving’ rights to Victorians, a view that completely ignores the limited operational provisions of the Act. Only King J in R v Williams has actually analysed the legal effect of the Charter. She noticed that s6(2)(b)  – which refers to courts and tribunals having ‘functions under Part 2’, the human rights part – could be read as giving rights legal effect in our courts (but what effect? what functions?) independently of the interpretation and conduct mandates; however, she also observed that she was ‘not convinced that is what Parliament intended.’ You bet it wasn’t. Consider Bongiorno J, who was content to observe twice last year that one provision or another was ‘probably contrary to the spirit, if not the letter’ of the Charter and this year applied the Charter without any analysis as if it gave a remedy to every breach of a right. The operative provisions of the Charter, for better or worse, strike a balance between competing political considerations. Such undergraduate references to  the Charter are not only bad law, but also threaten that balance. And there’s another consequence. Continue reading

Another road not taken

cranroad_00521_10_bnc4.jpgThe Charter got a passing mention in a tricky case about property valuation. In 1988, Halwood Corporation bought some land in Berwick that it knew was subject to a reservation for acquisition by VicRoads. The previous owner hadn’t sought compensation for the impact of the reservation on the value of the land and Halwood tried and failed to get the same compensation. In 2006, VicRoads finally acquired the land (probably for this project) and Halwood again sought compensation. This time, the issue was whether or not the land (and compensation) should have been valued without regard to the original reservation (which greatly reduced the value of the land, something Halwood pointedly demonstrated when it tried and failed to get the land subdivided.) Quite a tricky issue! Should Halwood get compensated for a ‘loss’ it already knew about when it bought the land (presumably for that very reason?) Or should VicRoads get the lost value of the land ‘for free’ just because the original owner sold rather than making a claim?

The case came down to interpreting the Land Acquisition and Compensation Act 1986. VicRoads argued that the Act didn’t have to ‘be interpreted to provide compensation on just terms’. Justice Osborn accepted that, noting in passing – something I’ll have more to say on in a future post! – that:

it is apparent s.20 of the Charter of Human Rights and Responsibilities Act 2006 did not provide for or recognise a right to just compensation upon the compulsory acquisition of land.

I say: not so fast. Continue reading

Victoria’s luckiest murder defendant?

Troy Grant Wells has just got bail after trying for over twelve months.  He was charged with murdering his six-week old son, although he says he just accidentally dropped little Joshua. This was his third attempt at bail, so  my initial assumption was that Wells had got the benefit of the current dubious jurisprudence on bail under the Charter. That’s because Wells struck it extremely lucky in terms of the Charter’s   absurd transitional provisions. Continue reading

A very soft Underbelly

download_holding.jpgThe wives and wowsers will be thrilled. Victorians almost certainly won’t be seeing Nine’s docudrama on the gangland wars anytime soon, thanks to a ruling by Justice King banning the broadcast (on TV and on ‘Victorian’ internet sites) until after the trial of an unnamed person in relation to one of the murders. Assuming King J didn’t follow a controversial approach to the Charter that she raised in another gangland trial over a year ago, this couldn’t be a Charter case, both because of the transitional provisions and the exemption of courts’ non-‘administrative functions’ from the conduct mandate.

But if it had been a Charter case, then it wouldn’t have been about “a responsibility to weigh up the interests of the community and commercial interests of Nine”, Continue reading

A High Court interpretation mandate?

patch_bike.jpgToday’s High Court judgment in Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4 differs from the usual trend of the High Court refusing to apply Kable. Typically, the Court has been willing to endorse just about any state legislation as compatible with the Kable principle. But, today, the Court found a different way to avoid laying the Kable: adopting a strained interpretation of a statutory provision. It’s as if the Court was bound by the Charter’s interpretation mandate…. Continue reading